pufendorf, the whole duty of man according to the law of nature [1673]

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Samuel von Pufendorf, The Whole Duty of ManAccording to the Law of Nature [1673]

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Edition Used:

The Whole Duty of Man According to the Law of Nature, trans. Andrew Tooke, ed.Ian Hunter and David Saunders, with Two Discourses and a Commentary by JeanBarbeyrac, trans. David Saunders (Indianapolis: Liberty Fund, 2003).

Author: Samuel von PufendorfAuthor: Jean BarbeyracTranslator: Andrew TookeEditor: Ian HunterEditor: David Saunders

About This Title:

The Whole Duty of Man (first published in Latin in 1673), was among the first worksto suggest a purely conventional basis for natural law. Rejecting scholasticism’s

Online Library of Liberty: The Whole Duty of Man According to the Law of Nature

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metaphysical theories, Pufendorf found the source of natural law in humanity’s needto cultivate sociability. This edition also includes he very important editorial materialfrom Jean Barbeyrac’s French editions and are here translated into English for thefirst time.



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Table Of Contents

IntroductionThe Whole Duty of ManThe Author’s PrefaceBook IChapter I: Of Human Actions In General, the Principles Of ’em, and How to

Be Accounted For, Or ImputedChapter II: Of the Rule of Human Actions, Or of Laws In General; and the

Different Qualifications of Those ActionsChapter III: Of the Law of Nature In GeneralChapter IV: Of the Duty of Man Towards God, Or, Concerning Natural

ReligionChapter V: Of the Duty of a Man Towards Himself 19Chapter VI: Of the Duty of One Man to Another, and First of Doing No Injury

to Any ManChapter VII: The Natural Equality of Men to Be AcknowledgedChapter VIII: Of the Mutual Duties of HumanityChapter IX: The Duty of Men In Making ContractsChapter X: The Duty of Men In DiscourseChapter XI: The Duty of Those Which Take an OathChapter XII: Duties to Be Observ’d In Acquiring Possession of ThingsChapter XIII: The Duties Which Naturally Result From Man’s Property In

ThingsChapter XIV: Of the Price and Value of ThingsChapter XV: Of Those Contracts In Which the Value of Things Is Pre-

supposed; and of the Duties Thence ArisingChapter XVI: The Several Methods By Which the Obligations Arising From

Contracts Are DissolvedChapter XVII: Of Meaning, Or InterpretationBook IiChapter I: Of the Natural State of MenChapter II: Of the Duties of the Married StateChapter III: Duty of Parents and ChildrenChapter IV: The Duties of Masters and ServantsChapter V: The Impulsive Cause of Constituting Communities 18Chapter VI: Of the Internal Frame and Constitution of Any State Or

GovernmentChapter VII: Of the Several Parts of Government 38Chapter VIII: Of the Several Forms of Government 41Chapter IX: The Qualifications of Civil Government 47Chapter X: How Government, Especially Monarchical, Is AcquiredChapter XI: The Duty of Supreme GovernoursChapter XII: Of the Special Laws of a Community, Relating to the Civil

Government 59Chapter XIII: Of the Power of Life and Death



Chapter XIV: Of ReputationChapter XV: Of the Power of Governours Over the Goods of Their SubjectsChapter XVI: Of War and PeaceChapter XVII: Of AlliancesChapter XVIII: The Duty of SubjectsTwo Discourses and a Commentary By Jean BarbeyracNote On the TranslationThe Judgment of an Anonymous Writer On the Original of This Abridgment

With Reflections of the Translator, Intended to Clarify Certain of theAuthor’s Principles

Discourse On What Is Permitted By the Laws In Which It Is Shown That WhatIs Permitted By the Laws Is Not Always Just and Moral

Discourse On the Benefits Conferred By the Laws In Which It Is Shown That aGood Man Should Not Always Take Advantage of the Benefits Conferred OnHim By the Laws



[Back to Table of Contents]

Introduction

In 1691, eighteen years after its original publication, Samuel Pufendorf’s De officiohominis et civis appeared in English translation in London, bearing the title The WholeDuty of Man, According to the Law of Nature. This translation, by Andrew Tooke(1673–1732), professor of geometry at Gresham College, passed largely unalteredthrough two subsequent editions, in 1698 and 1705, before significant revision andaugmentation in the fourth edition of 1716. Unchanged, this text was then reissued asthe fifth and final edition of 1735, which is here republished for the first time since.1Five editions, spanning almost half a century, bear testimony to the English appetitefor Pufendorf’s ideas.

There are important regards, however, in which The Whole Duty of Man differs fromPufendorf’s De officio.2 In the first place, Tooke’s translation is the product andinstrument of a shift in political milieu—from German absolutism to Englishparliamentarianism—reflected in the translator’s avoidance of Pufendorf’s keypolitical terms, in particular “state” (civitas) and “sovereignty” (summum imperium).Second, the anonymous editors of the 1716/35 edition intensified Tooke’sanglicization of Pufendorf through the inclusion of material—a series of importantfootnotes, revised translations of key passages—taken from the first edition of JeanBarbeyrac’s 1707 French translation of the De officio.3 Especially in his footnotes,Barbeyrac had moderated the secular and statist dimensions of Pufendorf’s thought inorder to retain some continuity between civil duties and religious morality—enough atleast to remind citizens of a law higher than the civil law and to remind the sovereignpower of its responsibility to protect the natural rights of citizens. Those reminders,though suited to the “polite” post-Hobbesian world of early-eighteenth-centuryLondon, had not been at all germane to Pufendorf’s original intention and text.

In the 1735 edition of The Whole Duty of Man, Pufendorf’s thought has thus beensuccessively reshaped in the course of its reception into a series of specific culturaland political milieux. To approach this text from the right angle we must follow asimilar path. We thus begin with Pufendorf himself, and then discuss Barbeyrac’sengagement with Pufendorf, before entering the English world of Andrew Tooke andthe anonymous editors who, in 1716, introduced the fruits of Barbeyrac’s engagementinto Tooke’s translation.

The son of a Lutheran pastor, Samuel Pufendorf was born in the Saxon village ofDorfchemnitz in 1632, moving to the neighboring town of Flöha the following year.4This was the middle of the Thirty Years’ War, whose horrors and fears Pufendorfexperienced as a child, with killings in nearby villages and the family forced to flee itshome briefly when he was seven. The Peace of Westphalia came about only in 1648,when Pufendorf was approaching maturity. The experience of religious civil war andthe achievement of social peace remained a driving factor in Pufendorf’s lifelongconcern with the governance of multiconfessional societies, and hence with thecritical relation between state and church.5



Pufendorf began to acquire the intellectual and linguistic equipment with which hewould address these issues as a scholarship boy at the Prince’s School (Fürstenschule)in Grimma (1645–50). The Saxon Prince’s Schools were Protestant grammar schoolsin which boys, destined to become clergy and officials, learned Latin and Greek,thereby gaining access to the classical texts so crucial to the development of earlymodern civil philosophy. Pufendorf continued his education at the universities ofLeipzig and Jena (1650–58). At Leipzig his thoughts of a clerical career soonevaporated, the result of his exposure to Lutheran orthodoxy in its uncompromisingProtestant-scholastic form. Fueled by hostility to the mixing of philosophy andtheology in university metaphysics, he turned to law and politics at Jena, aided by theteachings of Erhard Weigel, through whom Pufendorf encountered the“moderns”—Descartes, Grotius, and Hobbes. When Pufendorf began to formulate hismoral and political philosophy, it was Grotius and Hobbes who provided his initialorientation toward a postscholastic form of natural law.

After a brief period as house-tutor to the Swedish ambassador to Denmark(1658–59)—during which he was imprisoned as a result of the war between theScandinavian neighbors—Pufendorf spent a short interlude in Holland before gainingappointment as professor of natural and international law at the University ofHeidelberg (1661–68). From there he moved to a similar professorship at theUniversity of Lund in Sweden, where he remained from 1668 to 1676. During thistime, he wrote his monumental treatise on natural law—the De jure naturae etgentium, or Law of Nature and Nations (1672)—followed a year later by theabridgment that he made for university students, the De officio hominis et civis, whichin 1691 English readers would come to know as The Whole Duty of Man. Pufendorfcompleted his career with posts as court historian at the Swedish (1677–88) and thenthe Brandenburg courts (1688–94). In those years, he wrote major works on theEuropean state system, on the Swedish and Brandenburg crowns, and on the place ofreligion in civil life.

It is Pufendorf’s natural law works that concern us here. The object of natural lawtheory is a moral law that is natural in two senses—in being inscribed in man’s natureand in being accessible via natural reason as distinct from divine revelation.6Furthermore, this moral law is regarded as the normative foundation and universalstandard for “positive” law and politics. Building on the Aristotelian conception ofman as a “rational and sociable being,” Thomas Aquinas (1224–74) had groundednatural law in a reason shared with God and permitting access to a domain oftranscendent values derived from the need to complete or perfect man as a moralbeing. In subordinating “positive” civil laws to a transcendent moral order, Thomistnatural law doctrine armed the Catholic Church against the civil state. In the hands ofsixteenth-century scholastics such as Francisco Suárez (1548–1627), this weaponwould be used to delegitimate Protestant rulers as heretics, thereby ensuring that theirpositive laws would not accord with the law of nature in this its scholastic mode.7

In the dark shadows of the religious wars, Protestant thinkers of the sixteenth andseventeenth centuries sought a natural law that would defend the civil state againstreligious and moral delegitimation.8 Hugo Grotius (1583–1645) thus viewed the lawsderived from sociability as social conventions rather than transcendent values, while



the English political philosopher Thomas Hobbes (1588–1679) made social peace, notmoral perfection, the goal of natural law, such that the sovereign state became thefinal arbiter of morality, not vice versa.9 Following Grotius and Hobbes, Pufendorftoo viewed natural law as a set of rules for cultivating the sociability needed topreserve social peace.10 Though he differed from Hobbes by arguing that naturalmoral law exists in the state of nature—which Hobbes regarded as a state of moralanarchy—Pufendorf agreed with his English counterpart that only a civil governmentpossessing supreme power could provide the security that was the goal of naturallaw.11 In his Law of Nature and Nations and his De officio (Whole Duty), Pufendorfthus furnished the sovereign state with its own secular legitimacy as an institutioncreated by men to achieve social peace but possessing the absolute right to determineand enforce the measures best suited to this end.

Jean Barbeyrac (1674–1744) was Pufendorf’s most important publicist andcommentator. Born into a family of French Calvinists (Huguenots), he too hadexperienced the dangers of religious civil war, his family having been driven fromCatholic France by the renewed religious persecution that followed Louis XIV’srevocation in 1685 of the Edict of Nantes, settling in Berlin in 1679 after some yearsof refuge mainly in Protestant Lausanne, Switzerland. Whereas the French state hadsolved the problem of governing a multiconfessional society by imposing religiousconformity—in other words, by persecuting and expelling its Protestantpopulation—the Calvinist rulers of Brandenburg-Prussia addressed this problem bypermitting limited religious toleration. Berlin thus became a magnet for Protestantrefugees, with the result that the exiled Huguenots formed a quarter of the city’spopulation at the beginning of the eighteenth century. As if echoing Pufendorf’scareer, Barbeyrac turned from a clerical future to the study of natural law and moralphilosophy. Appointed to a teaching position in Berlin’s French Collège, Barbeyraccommenced what would become his celebrated French translations and commentarieson Pufendorf, aiming to make the latter’s model of a deconfessionalized politicalorder more widely available to a Francophone Huguenot diaspora still fearful for itssurvival.12 In this context, Barbeyrac translated the De jure in 170613 and the Deofficio in 1707,14 adding important notes—an apparatus that grew in subsequenteditions into a running commentary—and later appending three of his own works tothe De officio. These were his famous commentary on Gottfried Wilhelm Leibniz’sattack on Pufendorf, the Judgment of an Anonymous Writer, and his twin discourseson the relation of positive and natural law—the Discourse on What Is Permitted bythe Laws and the Discourse on the Benefits Conferred by the Laws—composed whilehe was professor of law in the Academy of Lausanne (1711–17).15 In translatingthese into English for the first time, and appending them to Tooke’s translation, ouraim is to provide Anglophone readers with a simulacrum of the most important of theearly modern Pufendorf “reception texts.”

In fact Barbeyrac walks a fine line, defending Pufendorf’s model of adeconfessionalized and pacified legal-political order against its theological andmetaphysical critics, yet resiling from the secular and statist dimensions of thismodel.16 Having suffered at first hand from a religiously unified state, Barbeyrac haslittle sympathy with a political metaphysics that justified such unity—even ametaphysics as esoteric as Leibniz’s Platonism. Counterattacking Leibniz’s political



rationalism, Barbeyrac draws on his translator’s knowledge of the works to defendPufendorf’s elevation of imposed law over transcendent reason and his insistence thatthe law apply only to man’s external conduct, leaving his inner moralityfree—thereby opening the space of religious toleration so crucial to the statelessHuguenots’ survival. On the other hand, given his commitment to the Reformed faithand his Huguenot fear of a religiously hostile absolute state, Barbeyrac grantsindividual conscience a far greater role in his construction of political authority thandoes Pufendorf. While claiming to make only minor rectifications to the De officio,Barbeyrac thus introduces major changes to Pufendorf’s foundation of natural law inthe need for civil security. In treating natural law as an expression of the divine will towhich individuals accede via conscience, Barbeyrac undermines Pufendorf’sargument that only the civil sovereign may give efficacious interpretation to naturallaw. He thus readmitted Lockean natural rights to a system from which they had beendeliberately excluded.

Little is known about the circumstances of Andrew Tooke’s English translation of theDe officio or of the anonymous editors of 1716/35, who borrowed footnotes fromBarbeyrac’s first edition and used his translation to modify Tooke’s. The obscurityarises from the fact that, unlike other editions and translations of the De officio—forexample, the edition prepared by Gershom Carmichael (1672–1729) for his studentsat Glasgow University17 —Tooke’s was not produced in the regulated world ofacademic publishing but in the altogether more freewheeling milieu of the Londoncommercial book trade. The marks of that milieu are evident in Tooke’s title, whichdeparts significantly from Pufendorf’s original in order to cash in on one of the mostpopular devotional manuals of the time, Richard Allestree’s The Whole Duty of Man,published in 1658 and rapidly acquiring best-seller status.18 Although exploitingAllestree’s success by borrowing his title, Tooke’s translation was nonetheless ariposte, confronting Allestree’s focus on the religious duties of a Christian subjectwith Pufendorf’s radical separation of the civil obligations of the citizen from thereligious obligations of the Christian.19 We can surmise that Tooke’s 1691 translationof the De officio was undertaken for an audience of London Whigs—including broad-church Anglicans, moderate Puritans, and members of the Inns of Court—as aweapon against persisting high-church aspirations for an Anglican confessionalstate.20 The future preservation of parliamentary rule and a Protestant peace were notyet guaranteed, nor were the relations of church and state securely settled, so soonafter the revolution of 1688–89.

This context also helps explain Tooke’s lexical choices for some of Pufendorf’s keyterms. While civitas and summum imperium were capable of several translations inthe seventeenth century, depending on the ideological commitments of particularauthors, a recent translator shows that in Pufendorf’s case these are most accuratelyrendered as “state” and “sovereignty,” respectively.21 Indeed, it is central toPufendorf’s argument that these terms refer to the notion of a supreme politicalauthority irreducible either to those who occupy the office of sovereign or to thoseover whom such authority is exercised—characteristics definitive of the modernnotion of state.22 Given that Hobbes had explicitly introduced both “commonwealth”and “state” as translations of civitas, it is significant that Tooke attempted to avoidboth “state” and “sovereignty” as much as possible, preferring circumlocutions such



as “community” and “society” for the former and “supreme authority” and “supremegovernor” for the latter.23 With his references to the exercise of sovereignty by thestate routinely rendered in terms of the exercise of authority in the community,Pufendorf’s absolutist statism thus undergoes a lexical and ideological softening,appearing in Tooke’s English in a form better fitting the Whig view of sovereignty asshared with Parliament and embedded in society.

In borrowing certain of Barbeyrac’s footnotes, and in altering Tooke’s translation atcertain points, the anonymous editors of 1716/35 furthered this anglicizing tendencyto see sovereignty as inherent in society. At key points, Barbeyrac’s notes qualify orreinterpret Pufendorf’s core doctrines, arguing that it is necessary to retain some sortof continuity between natural law and divine providence, that pragmatic deductions ofthe rules of social peace should be supplemented with Christian conscience, thatobedience to civil law and the sovereign are not enough to satisfy the demands ofmorality, and that natural rights—including the right to punish a tyrannicalsovereign—remain valid in the civil state. Perhaps in the England of 1716, with thememory of religious civil war fading, Pufendorf’s Hobbesian subordination ofreligious morality to the needs of civil order had begun to seem less necessary,allowing the editors to readmit conscience and morality, now that they had beenrendered less dangerous for the Protestant state.

Ian Hunter

David Saunders

THE WHOLE

DUTY of MAN

According to the

LAW

OF

NATURE.

By that famous Civilian

SAMUEL PUFENDORF,

Professor of The Law of Nature and Nations, in the University of Heidelberg, and inthe Caroline University, afterwards Counsellor and Historiographer to the King ofSweden, and to his Electoral Highness of Brandenburgh.

Now made ENGLISH.

The Fifth Edition with the Notes of Mr. Barbeyrac, and many other Additions andAmendments; And also an Index of the Matters.



By ANDREW TOOKE, M.A. late Professor of Geometry in Gresham-College.

Nunquam aliud Natura, aliud Sapientia dicit.1

Juv. Sat. XIV. 321.

LONDON:

Printed for R. Gosling, at the Mitre and Crown; J. Pemberton, at the Golden Buck;and B. Motte, at the Middle-Temple-Gate, Fleet-Street. 1735.

To his Honoured Friend

Mr. GEORGE WHITE,

Of London,Merchant;

This Tractate

Concerning the

LAW of NATURE,

is

Offered, Dedicated, Presented,

by

His humblest

and most obliged Servant,

The Translator.




To The Reader

The Translator having observed, in most of the Disputes wherewith the present Age isdisquieted, frequent Appeals made, and that very properly, from Laws and Ordinancesof a meaner Rank to the everlasting Law of Nature, gave himself the Pains to turnover several Writers on that Subject. He chanced, he thinks with great Reason, toentertain an Opinion, that this Author was the clearest, the fullest, and the mostunprejudiced of any he met with: And hereupon, that he might the better possesshimself of his Reasonings, he attempted to render the Work into Mother-Tongue, afterhe had first endeavoured to set several better Hands upon the Undertaking, who allfor one Reason or other declined the Toil. He thought when ’twas done, it might be asacceptable to one or other to read it, as it had been to himself to translate it.

Concerning the Author, ’tis enough to say, that he has surely had as great Regardpaid him from Personages of the highest degree, as perhaps ever was given to themost learned of Men; having been invited from his Native Country, first by the ElectorPalatine, to be Professor of the Law of Nature and Nations in the University ofHeidelberg; then by the King of Sweden to honour his new rais’d Academy, byaccepting the same Charge therein, and afterwards being admitted of the Council,and made Historiographer, both to the same King, and to his Electoral Highness ofBrandenburgh, afterwards King of Prussia.

Concerning this his Work, it is indeed only as it were an Epitome of the Author’slarge Volume of The Law of Nature and Nations: But as this Epitome was made andpublished by himself, the Reader cannot be under any doubt, but that he has here theQuintessence of what is there deliver’d; what is par’d off being mostly Cases in theCivil Law, Refutations of other Authors, and some Notions too fine and unnecessaryfor a Manual. How good an Opinion the learned World has of this his Performance,is very evident from the many Editions there have been of it, not only in the OriginalLatin, but in the Modern Languages, publish’d in Sweden, Holland, France, Germany,and England.1

Since2 the first Publication hereof in 1673, at Lunden, the Author revis’d his largerWork, and put out a new Edition of it, with many Additions and great Improvements;and from thence this Work also has been amended and enlarged, by extracting theseadditional Chapters, and inserting them as compendiously as might be into theirproper Places; which was first done in a German Translation,3and afterwards in aLatin Edition, published by the Professor of Giessen,4both in the Life-time of theAuthor, with his Knowledge, and by his Approbation;5so that the Reader may besatisfied that these Additions, now first inserted into this Translation, are as genuineas the Rest of the Work; as he will find them as useful and necessary a Part, as any ofthe whole Book. Besides these, in this Impression, some other Additions andAlterations have been found necessary to be made: For whereas in some Places theAuthor’s Opinion was delivered in so brief or obscure a Manner, that his Meaningseemed difficult to be apprehended; again in other Places the Coherence andConnection of his Discourses did not sufficiently appear; to remedy the former of



these Defects, all intricate Phrases and Expressions have been changed,6 and whereeven that was not sufficient to make the Author’s Mind plain and clear, it is explainedand illustrated by adding proper Instances and Examples;7 and then to repair thelatter Defect, the Order of some of the Sections hath been changed, and proper andnecessary Transitions to many of them have been added;8 the taking which Liberty,’tis to be hoped, will ever appear most justifiable, since thereby the Rules of Methodare better observ’d, and the Sense of the Author rendered more perspicuous than inthe former Editions of this Translation.

But farther, to make this Edition still more compleat and useful than the former, toeach Section References are continually made to the large Work of The Law ofNature and Nations,9and, as often as could be, to The Rights of War and Peace;10thatthose who read this Epitome, and have a mind to see any Point therein more fullyhandled and illustrated, may be readily directed, where to have recourse to the Placewhere it is at large discoursed of, not only by this Author himself, but also by Grotius,an Author of equal Reputation for his judicious and learned Writings on Subjects ofthe same nature. Besides these References, as some of the Author’s Opinions, laiddown in this Treatise, have been controverted by some Writers, and defended by theAuthor in some other of his Works, the Reader is directed to those Places in themwhere these Cavils and Exceptions are taken notice of, and satisfactorily answered.11But then, when any Exceptions can justly be made, and there is good Reason fordiffering from the Author’s Opinion in any Point, the Reasons are given for so doingin some Notes at the Bottom of the Page;12 which Notes, however, are neither manynor long, since it would be very absurd to run into Prolixity in Comments to a Workwhere Brevity is principally aim’d at; into which therefore nothing ought to beadmitted, but what is essentially and absolutely necessary to the Subject treated of.And on this Account also it is, that whereas the same Matters have, in the formerEditions, been found to occur in more than one Place, in this Edition such superfluousRepetitions have been par’d off, by putting together what has been said on the samePoint in different Places, and comprehending the whole under one Head or Section.13And lastly, that nothing might be wanting to render this in all Points perfect, aCompleat Index is added.



The Author’s Design.

Three Sciences bywhich Men come to aknowledge of theirDuty.1


The Author’S Preface

Had not the Custom which has so generally obtain’d amongLearned Men, almost procured to it self the Force of a Law, itmight seem altogether superfluous to premise a Word concerning the Reason of the *present Undertaking; the Thing it self plainly declaring my whole Design to be, thegiving as short, and yet, if I mistake not, as plain and perspicuous a Compendium ofthe most material Articles of the Law of Nature, as was possible; and this, lest, if suchas betake themselves to this Study should enter those vast Fields of Knowledgewithout having fully imbibed the Rudiments thereof, they should at first sight beterrified and confounded by the Copiousness and Difficulty of the Matters occurringtherein. And, at the same time, it seems plainly a very expedient Work for thePublick, that the Minds, of Youth especially, should be early imbu’d with that MoralLearning, for which they will have such manifest Occasion, and so frequent Use,through the whole Course of their Lives.

And altho’ I have always looked upon it as a Work deserving no great Honour, † toEpitomize the larger Writings of others, and more especially one’s own; yet havingthus done out of Submission to the commanding Authority of my Superiors, I hope nohonest Man will blame me for having endeavoured hereby to improve theUnderstandings of Young Men more particularly; to whom so great Regard is to behad, that whatsoever Work is undertaken for their sakes, tho’ it may not be capable ofgreat Acuteness or splendid Eloquence, yet it is not to be accounted unworthy of anyMan’s Pains. Beside, that no Man, in his Wits, will deny, that these Principles thuslaid down are more conducive to the understanding of all Laws in general, than anyElements of the Law Civil can be.

And this might have sufficed for the present; but I am minded by some, that it wouldnot be improper to lay down some few Particulars, which will conduce much to aright Understanding of the Constitution of the Law of Nature, and for the betterascertaining its just Bounds and Limits. And this I have been the more ready to do,that I might on this occasion obviate the Pretences of some over-nice Gentlemen, whoare apt to pass their squeamish Censures on this Sort of Learning, which in manyInstances, is wholly separate from their Province.

Now ’tis very manifest, that Men derive the Knowledge of theirDuty, and what is fit to be done, or to be avoided in this Life, asit were, from three Springs, or Fountain-Heads; to wit, From theLight of Nature; From the Laws and Constitutions of Countries;And from the special Revelation of Almighty God.

From the First of these proceed all those most common and ordinary Duties of a Man;more particularly those that constitute him a sociable Creature with the Rest ofMankind: From the Second are derived all the Duties of a Man, as he is a Member ofany particular City or Common-wealth:2 From the Third result all the Duties of aChristian Man.



The differencebetween the Law ofNature, Civil Law andMoral Theology.

The Maxims of thesethree Sciences in nowise opposite orcontradictory to eachother.

And from hence proceed three distinct Sciences: The first of which is of the Law ofNature, common to all Nations; the second is of the Civil or Municipal Law peculiarto each Country, which is or may be as manifold and various as there are differentStates and Governments in the World; the third is Moral Divinity,3 as it is contra-distinct to that Part of Divinity, which is conversant in explaining the Articles of ourFaith.

Each of these Sciences hath a peculiar Way of proving theirMaxims, according to their own Principles. The Law of Natureasserts, that this or that Thing ought to be done, because fromright Reason it is concluded, that the same is necessary for thePreservation of Society amongst Men.

The fundamental Obligation we lie under to the Civil Law is, that the LegislativePower has enacted this or that Thing.4

The Obligation of Moral Divinity lies wholly in this; because God, in the SacredScripture, has so commanded.

Now, as the Civil Law presupposes the Law of Nature, as themore general Science; so if there be any thing contained in theCivil Law, wherein the Law of Nature is altogether silent, wemust not therefore conclude, that the one is any ways repugnantto the other. In like manner, if in Moral Divinity some Things aredelivered, as from Divine Revelation, which by our Reason weare not able to comprehend, and which on that Score are above the Reach of the Lawof Nature; it would be very absurd from hence to set the one against the other, or toimagine that there is any real Inconsistency between these Sciences. On the otherhand, in the Doctrine of the Law of Nature, if any things are to be presupposed,because so much may be inferred from Reason, they are not to be put in Opposition tothose Things which the Holy Scripture on that Subject delivers with greater Clearness;but they are only to be taken in an abstracted Sense. Thus, for Example, from the Lawof Nature, abstracted from the Account we receive thereof in Holy Writ, there may beformed an Idea of the Condition and State of the first Man, as he came into the World,only so far as is within the Comprehension of Human Reason. Now, * to set thoseThings in opposition to what is delivered in Sacred Writ concerning the same State,would be the greatest Folly and Madness in the World.

But as it is an easie Matter to reconcile the Civil Law with the Law of Nature; so itseems a little more difficult to set certain Bounds between the same Law of Natureand Moral Divinity, and to define in what Particulars chiefly they differ one from theother.

Upon this Subject I shall deliver my Opinion briefly, not with any Papal Authority, asif I was exempt from all Error by any peculiar Right or Priviledge, neither as one whopretends to any Enthusiastick Revelation; but only as being desirous to discharge thatProvince which I have undertaken, according to the best of my Ability. And, as I amwilling to hear all Candid and Ingenuous Persons, who can inform me better; and am



The differencebetween the Law ofNature and MoralTheology.

1st. They differ in theSource from whenceeach derives itsPrinciples.

2d. Difference in theManner whereby theLaws of them both areproposed.

3d. Difference in theEnd and Design ofthem both.

4th Difference inrespect to the Objectof each of them.

very ready to retract what I have said amiss; so I do not value those Pragmatical andPositive Censurers and Busie-bodies, who boldly concern themselves with Thingswhich no ways belong to them: Of these Persons we have a very Ingenious Charactergiven by Phaedrus:*They run about, says he, as mightily concerned; they are verybusie even when they have nothing to do; they puff and blow without any occasion;they are uneasie to themselves, and troublesome to every body else.

Now the Chief Distinction, whereby these Sciences are separatedfrom one another, proceeds from the different Source or Springwhence each derives its Principles; and of which I have alreadydiscoursed. From whence it follows, if there be some things,which we are enjoined in Holy Writ either to do or forbear,the Necessity whereof cannot be discover’d by Reason alone,they are to be looked upon as out of the Cognizance of the Lawof Nature, and properly to appertain to Moral Divinity.

Moreover, in Divinity the Law is considered as it has the DivinePromise annexed to it, and with Relation to the Covenantbetween God and Man; from which Consideration the Law ofNature abstracts, because the other derives it self from aparticular Revelation of God Almighty, and which Reason alonecould not have found out.

But the greatest Difference between them is this; that the mainEnd and Design of the Law of Nature is included within theCompass of † this Life only, and so thereby a Man is informedhow he is to live in Society with the Rest of Mankind: But MoralDivinity instructs a Man how to live as a Christian; who is not only obliged to livehonestly and virtuously in this World, but is besides in earnest Expectation of theReward of his Piety after this Life; and therefore he has his Conversation in Heaven,but is here only as a Stranger and a Pilgrim. For although the Mind of Man does withvery great Ardency pursue after Immortality, and is extremely averse to its ownDestruction; and thence it was, that most of the Heathens had a strong Persuasion ofthe separate State of the Soul from the Body, and that then Good Men should berewarded, and Evil Men punished; yet notwithstanding such a strong Assurance ofthe Certainty hereof, upon which the Mind of Man can firmly and entirely depend, isto be derived only from the Word of God. Hence it is that the Dictates of the Law ofNature are adapted only to Human Judicature, which does not extend it self beyondthis Life; and it would be absurd in many respects to apply them to the Divine Forum,which concerns it self only about Theology.

From whence that also follows, that, because Human Judicatureregards only * the external Actions of Man, but can no waysreach the Inward Thoughts of the Mind, which do not discoverthemselves by any outward Signs or Effects; therefore the Law ofNature is for the most part exercised in forming the outward Actions of Men. ButMoral Divinity does not content it self in regulating only the Exterior Actions; but ismore peculiarly intent in forming the Mind, and its internal Motions, agreeable to the



In regard to the Lawof Nature we are toconsider Man, in thedepraved State he hasbeen, since the firstTransgression.

good Pleasure of the Divine Being; disallowing those very Actions, which outwardlylook well enough, but proceed from an impure and corrupted Mind. And this seems tobe the Reason why the Sacred Scripture doth not so frequently treat of those Actions,that are under certain Penalties by Human Laws, as it doth of those, which, as Senecaexpresses it, * are out of the Reach of any such Constitutions. And this will manifestlyappear to those, who shall carefully consider the Precepts and Virtues that are thereininculcated; altho’, as even those Christian Virtues do very much dispose the Minds ofMen towards the maintaining of mutual Society; so likewise Moral Divinity doesmightily promote the Practice of all the main Duties that are enjoyn’d us in our CivilDeportment: So that, † if you should observe any one behave himself like a restlessand troublesome Member in the Common-wealth, you may fairly conclude, that theChristian Religion has made but a very slight Impression on that Person, and that ithas taken no Root in his Heart.

And from these Particulars, I suppose, may be easily discovered; not only the certainBounds and Limits which distinguish the Law of Nature, as we have defined it, fromMoral Divinity; but it may likewise be concluded, that the Law of Nature is no wayrepugnant to the Maxims of sound Divinity; but is only to be abstracted from someparticular Doctrines thereof,which cannot be fathom’d by the Help of Reason alone. Fromwhence also it necessarily follows, that in the Science of the Lawof Nature, a Man should be now consider’d, as being deprav’d inhis very Nature, and upon that Account, as a Creature, subject tomany vile Inclinations: ‡ For although none can be so stupid asnot to discover in himself many Evil and inordinate Affections,nevertheless, unless we were inform’d so much by Sacred Writ, it would not appear,that this Rebellion of the Will was occasioned by the first Man’s Transgression; andconsequently, since the Law of Nature does not reach those Things which are aboveReason, it would be very preposterous to derive it from the State of Man, as it wasuncorrupt before the Fall; * especially since even the greatest Part of the Precepts ofthe Decalogue, as they are deliver’d in Negative Terms, do manifestly presuppose thedeprav’d State of Man. Thus, for Example, in the First and Second Commandment, itseems to be supposed, that Mankind was naturally prone to the Belief of Polytheismand to Idolatry. For if you should consider Man in his Primitive State, wherein he hada clear and distinct Knowledge of the Deity, as it were by a peculiar Revelation; I donot see how it could ever enter into the Thoughts of such a one, to frame any Thing tohimself to which he could pay Reverence, instead of, or together with, the true God;or to believe any Divinity to reside in that which his own Hands had form’d; thereforethere was no Necessity of laying an Injunction upon him in Negative Terms, that heshould not worship other Gods; but this Plain Affirmative Precept would have beensufficient; Thou shalt love, honour, and adore GOD, whom you know to have createdboth your self, and the whole Universe. And the same may be said of the ThirdCommandment: For why should it be forbidden, in a Negative Precept, to blasphemeGod, to such a one who had at the same time a clear and perfect Understanding of hisBounty and Majesty; and who was actuated by no inordinate Affections, and whoseMind did chearfully acquiesce in that Condition, wherein he was placed by AlmightyGod? How could such a one be Guilty of so great Madness? But he needed only tohave been admonish’d by this Affirmative Precept; That he should glorifie the Name



Whether the Law ofNature would havebeen the same it isnow, had Mancontinu’d in his Stateof Innocence.

of GOD. But it seems otherwise of the Fourth and Fifth Commandments; which, asthey are Affirmative Precepts, neither do they necessarily presuppose the deprav’dState of Man, they may be admitted, Mankind being consider’d as under eitherCondition. But the thing is very manifest in relation to the other Commandments,which concern our Neighbour; for it would suffice plainly to have enjoyn’d Man,consider’d as he was first created by God, that he should love his Neighbour, wheretohe was beforehand inclin’d by his own Nature. But how could the same Person becommanded, that he should not kill, when Death had not as yet fall’n on Mankind,which enter’d into the World upon the account of Sin? But now there is very greatNeed of such a Negative Command, when, instead of loving one another, there arestir’d up so great Feuds and Animosities among Men, that even a great Part of them isowing purely to Envy, or an inordinate Desire of invading what belongs to another; sothat they make no scruple, not only of destroying those that are innocent, but eventheir Friends, and such as have done them signal Favours; and all this, forsooth, theyare not asham’d to disguise under the specious Pretence of Religion and Conscience.In like manner, what Need was there expressly to forbid Adultery, among thosemarried Persons, whose mutual Love was so ardent and sincere? Or, what Occasionwas there to forbid Theft, when as yet Covetousness and Poverty were not known, nordid any Man think that properly his own, which might be useful or profitable toanother? Or, to what purpose was it to forbid the bearing False Witness, when as yetthere were not any to be found, who sought after Honour and Reputation tothemselves, by Slandering and Aspersing others with false and groundlessCalumnies? So that not unfitly, you may here apply the Saying of Tacitus,*Whilst nocorrupt Desires deprav’d Mankind, the first Men liv’d without Sin and Wickedness,and therefore free from Restraint and Punishment; and whereas they coveted nothingbut what was their due, they were barr’d from nothing by Fear.

And these Things being rightly understood, may clear the wayfor removing this Doubt; * whether the Law was different, or thesame, in the Primitive State of Nature, before the Fall? Where itmay be briefly answer’d. That the most material Heads of theLaw were the same in each State; but that many particularPrecepts did vary, according to the Diversity of the Condition ofMankind; or rather, that the same Summary of the Law was explain’d by diverse, butnot contrary Precepts; according to the different State of Man, by whom that Law wasto be observ’d. Our Saviour reduced the Substance of the Law to two Heads: LoveGod, and Love thy Neighbour: To these the whole Law of Nature may be referr’d, aswell in the Primitive, as in the Deprav’d State of Man; (unless that in the PrimitiveState there seems not any, or a very small Difference between the Law of Nature, andMoral Divinity.) For that Mutual Society, which we laid down as a Foundation to theLaw of Nature, may very well be resolv’d into the Love of our Neighbour. But when †

we descend to particular Precepts, there is indeed a very great Difference, both inrelation to the Commands and Prohibitions.

And as to what concerns the Commands, there are many which have place in thisState of Mankind, which seem not to have been necessary in the Primitive State: Andthat partly, because they presuppose such a Condition, as, ’tis not certain, couldhappen to that most happy State of Mankind; partly, because there can be no Notion



of them, without admitting Misery and Death, which were unknown there: As forInstance, we are now enjoyn’d by the Precepts of the Law of Nature, not to deceiveone another in Buying or Selling, not to make use of false Weights or Measures, torepay Money that is lent, at the appointed Time. But it is not yet evident, whether, ifMankind had continu’d without Sin, there would have been driven, any Trade andCommerce, as there is now in the World; or whether there would then have been anyOccasion for the Use of Money. In like manner, if such Kind of Communities as arenow adays, were not to be found in the State of Innocence, there would be thenlikewise no Occasion for those Laws which are presuppos’d as requisite for the well-ordering and Government of such Societies. We are also now commanded by the Lawof Nature, To succour those that are in Want. To relieve those that are oppressed. Totake care of Widows and Orphans. But it would be to no purpose to have inculcatedthese Precepts to those who were no ways subject to Misery, Poverty, and Death. TheLaw of Nature now enjoyns us, To forgive Injuries; and, To use our utmostEndeavours towards the promoting of Peace amongst all Mankind. Which would beunnecessary among those who never offended against the Laws of Mutual Society.And this too is very evident in the Prohibitory Precepts which relate to the Natural,not Positive, Law. For although every Command does virtually contain in it self aProhibition of the opposite Vice; (as, for Instance, he that is commanded to love hisNeighbour, is at the same time forbidden to do such Actions, as may any ways thwartor contradict his Duty of Love:) Yet it seems superfluous that these things should beordain’d by express Commands, where there are no disorderly Inclinations to exciteMen to the committing such Wrongs. For the Illustration of which, this may be takennotice of, that *Solon would by no Publick Law enact any Punishment for Parricides,because he thought that no Child could be guilty of so horrid an Impiety. In likemanner we find an Account, in the † History of the West-Indies, concerning thePeople of Nicaragua; that in their Laws no Punishment was appointed for those whoshould kill the Cacique, by which Name they call their Princes; because, say they,there can be no Subject, who would contrive or perpetrate so base an Action. I amafraid it may savour too much of Affectation to enlarge any farther in the Proof ofwhat is in it self so clear and evident. Yet I shall add this one Example, fitted to themeanest Capacity. Suppose there are two Children, but of different Dispositions,committed to the Care of a certain Person: One of which is Modest and Bashful,taking great delight in his Studies; the other proves Unruly, and Surly; giving himselfover more to loose Pleasures, than to Learning. Now the Duty of both these is thesame, To follow their Studies; but the particular Precepts, proper to each, aredifferent; for it is sufficient to advise the Former to what Kind of Studies he mustapply himself, at what Time, and after what Manner they are to be follow’d: But asfor the Other, he must be enjoyn’d under severe Penalties, not to Wander abroad, notto Game, not to sell his Books, not to get others to make his Exercises, not to play thegood Fellow, not to run after Harlots. Now if any one should undertake, in a setDiscourse, to declaim against these things to him of the contrary Temper, the Childmight very well enjoyn him Silence, and bid him inculcate them to any Body else,rather than to him, who takes no Delight or Pleasure in such Practices. From whence Ilook upon it as manifest, that the Law of Nature would have a quite different Face, ifwe were to consider Man, as he was in his Primitive State of Innocence.



And now since the Bounds and Limits of this Science, whereby it is distinguish’dfrom Moral Divinity, are so clearly set down, it ought at least to have the samePriviledges with other Sciences, as the Civil Law, Physick, Natural Philosophy, andthe Mathematicks; wherein if any Unskilful Person presume to meddle, assuming tohimself the Quality of a Censor, without any Authority, he may fairly have thatobjected to him, which was formerly done by *Apelles to Megabyzus, who undertookto talk at random about the Art of Painting; Pray, said he, be silent, lest the Boyslaugh at you, who pretend to talk of Matters you do not understand.

Now, upon the whole, I am content to submit to the Judgment of Discreet andIntelligent Persons; but as for Ignorant and Spiteful Detractors, ’tis better to leave ’emto themselves, to be punish’d by their own Folly and Malice; since according to theAncient Proverb, The Ethiopian cannot change his Skin.



I.

What Duty is.

II.

What a HumanAction.

III.

Human Capacity.Knowing and ChusingL. N. N. l. 1. c. 1. §2c. 3. §1.

IV.

HumanUnderstanding. L. N.N. l. 1. c. 3.


Book I

Chapter I

Of Human Actions In General, The Principles Of ’Em, AndHow To Be Accounted For, Or Imputed

What we mean here by the Word Duty, is, That* Action of aMan, which is regularly order’d according to some prescrib’dLaw, which he is oblig’d to obey. To the Understanding whereofit is necessary to premise somewhat, as well touching the Natureof a Human Action, as concerning Laws in general.

By a Human Action we mean not every Motion that proceedsfrom the Faculties of a Man; but such only as have their Originaland Direction from those Faculties which God Almighty hasendow’d Mankind withal, distinct from Brutes; that is, such asare undertaken by the Light of the Understanding, and theChoice of the Will.

For it is not only put in the Power of Man to know the variousThings which appear in the World, to compare them one withanother, and from thence to form to himself new Notions; but heis able to look forwards, and to consider what he is to do, and tocarry himself to the Performance of it, and this to do after somecertain Manner, and to some certain End; and then he can collectwhat will be the Consequence thereof. Beside, he can make a Judgment upon Thingsalready done, whether they are done agreeably to their Rule. Not that all a Man’sFaculties do exert themselves continually, or after the same manner, but some of themare stir’d up in him by an internal Impulse; and when rais’d, are by the same regulatedand guided. Neither beside has a Man the same Inclination to every Object; but somehe Desires, and for others he has an Aversion: And often, though an Object of Actionbe before him, yet he suspends any Motion towards it; and when many Objects offerthemselves, he chuses one and refuses the rest.

As for that Faculty therefore of comprehending and judging ofThings, which is called the Understanding; it must be taken forgranted, first of all, * That every Man of a mature Age, andentire Sense, has so much Natural Light in him, as that, withnecessary Care, and due Consideration, he may rightlycomprehend, at least those general Precepts and Principleswhich are requisite in order to pass our Lives here honestly and quietly; and be able tojudge that these are congruous to the Nature of Man. For if this, at least, be notadmitted within the Bounds of the Forum Humanum, [or Civil Judicature] Men might



V.

What is meant byConscience rightlyinform’d, and what byProbable Conscience.L. N. N. l. 1. c. 3. §5.

VI.

Conscience doubting.L. N. N. l. 1. c. 3. §8.

VII.

Error, vincible andinvincible. L. N. N. l.1. c. 3. §11.

VIII.

pretend an invincible Ignorance for all their Miscarriages; * because no Man in forohumano can be condemn’d for having violated a Law which it was above his Capacityto comprehend.

The Understanding of Man, when it is rightly instructedconcerning that which is to be done or omitted, and this so, asthat he is able to give certain and undoubted Reasons for hisOpinions, is wont to be call’d Conscience rightly inform’d: Thatis, govern’d by sure Principles, and settling its Resolutionsconformably to the Laws. But when a Man has indeedentertain’d the true Opinion about what is to be done or not to bedone, the Truth whereof yet he is not able to make good by Reasoning; but he eitherdrew such his Notion from his Education, way of Living, Custom, or from theAuthority of Persons wiser or better than himself; and no Reason appears to him thatcan persuade the contrary, this uses to be call’d Conscientia probabilis,Consciencegrounded upon Probability. And by this the greatest part of Mankind are govern’d, itbeing the good Fortune of few to be able to enquire into, and to know, the Causes ofThings.

And yet it chances often, to some Men especially in singularCases, that Arguments may be brought on both sides, and theynot be Masters of sufficient Judgment to discern clearly whichare the strongest and most weighty. And this is call’d a†Doubting Conscience. In which Case this is the Rule: As long asthe Understanding is unsatisfied and in doubt, whether the thing to be done be goodor evil, the doing of it is to be deferr’d. For to set about doing it before the Doubt isanswer’d, implies a sinful Design, or at least a Neglect of the Law.

Men also oftentimes have wrong Apprehensions of the matter,and take that to be true which is false; and then they are said tobe in an Error; and this is called Vincible Error, when a Man byapplying due Attention and Diligence might have prevented hisfalling thereinto; and it’s said to be Invincible Error, when thePerson, with the utmost Diligence and Care that is consistentwith the common Rules of Life, could not have avoided it. But this sort of Error, atleast, among those who give their Minds to improve the Light of Reason, and to leadtheir Lives regularly, happens not in the common Rules of living, but only in peculiarMatters. For the Precepts of the Law of Nature are plain; and that Legislator whomakes positive Laws, both does and ought to take all possible Care, that they may beunderstood by those who are to give Obedience to them. So that this Sort of Errorproceeds only from a supine Negligence. But in particular Affairs ’tis easie for someError to be admitted, against the Will, and without any Fault of the Person,concerning the Object and other * Circumstances of the Action.



Of Ignorance, and thevarious Kinds of it. L.N. N. l. 1. c. 3. §10.

IX.

The Will, unforcedand free. L. N. N. l. 1.c. 4.

Where Knowledge simply is wanting as to the Thing performedor omitted, such Defect of Knowledge is call’d Ignorance.1

This Ignorance may be two Ways consider’d, either with respectto its Origin, or with respect to its Influence on the Action. With reference to thislatter, Ignorance is of two Sorts, one being the Cause of the Thing ignorantly done,the other not; on which account the first of these is call’d Efficacious Ignorance, theother Concomitant.

EFFICACIOUS Ignorance is the Want of such Knowledge as, had it not beenwanting, would have hindred the Action: Such was Abimelech’s Ignorance, Gen.xx. 4,5. who, had he known Sarah to have been Abraham’s Wife, had never entertain’d anyThoughts of taking her to himself. Concomitant Ignorance is the Want of suchKnowledge, as had it not been wanting, would not have hindred the Fact: As supposea Man should kill his Enemy by a chance Blow, whom he would otherwise havekill’d, had he known him to have been in that particular Place.

Ignorance with respect to its Origin is either Voluntary or Involuntary. VoluntaryIgnorance is either contracted by mere negligence, idleness and unattention; or elseaffected, that is, proceeding from a direct and formal Contempt of the means ofinforming our selves in what we were able, and what it was our Duty to come to theknowledge of. Involuntary Ignorance consists in the want of knowing such Things, asit was neither in our Power, nor a part of our Duty to come to the knowledge of. Thislikewise is of two Sorts: The former is, when in doing a Thing a Man is not able toovercome the Ignorance from which it proceeds, and yet is in Fault for falling intothat Ignorance; which is the Case of Drunken Men. The latter is, when a Man is notonly ignorant of such Things as could not be known before the Action, but is also *free from any Blame upon the account of his falling into that Ignorance, or hiscontinuing in it.

The other Faculty, which does peculiarly distinguish Men fromBrutes, is called the Will; by which, as with an internal Impulse,Man moves himself to Action, and chuses that which best pleaseshim; and rejects that which seems unfit for him. Man thereforehas thus much from his Will: First, that he has a Power to actwillingly, that is, he is not determin’d by any intrinsick Necessityto do this or that, but is himself the Author of his own Actions: Next, that he has aPower to act freely, that is, upon the Proposal of one Object, he may act or not act,and either entertain or reject; or if divers Objects are propos’d, he may chuse one andrefuse the rest. Now whereas among human Actions some are undertaken for theirown Sakes, others because they are subservient to the attaining of somewhat farther;that is, some are as the End, and others as Means: As for the End, the Will is thus farconcern’d, That being once known, this first approves it, and then moves vigorouslytowards the achieving thereof, as it were, driving at it with more or less earnestness;and this End once obtain’d, it sits down quietly and enjoys its Acquist with Pleasure.For the Means, they are first to be approv’d, then such as are most fit for the Purposeare chosen, and at last are apply’d to Use.



X.

The Will spontaneouschargeable with theAction. L. N. N. l. 1.c. 4. §2.

XI.

The Will variouslyaffected. L. N. N. l. 1.c. 4. §4.

XII.

The Will byass’d byNatural Inclinations.L. N. N. l. 1. c. 4. §5.

But as Man is accounted to be the Author of his own Actions,because they are voluntarily undertaken by himself: So this ischiefly to be observ’d concerning the Will, to wit, that itsSpontaneity, or natural Freedom, is at least to be asserted in thoseActions, concerning which a Man is wont to give an Accountbefore any human Tribunal. For where an absolute Freedom ofchoice is wholly taken away, there not the Man who acts, but he that imposed uponhim the Necessity of so doing, is to be reputed the Author of that Action, to which theother unwillingly ministred with his Strength and Limbs.

Farthermore, though the Will do always desire Good in general,and has continually an aversion for Evil also in general; yet agreat Variety of Desires and Actions may be found among Men.And this arises from hence, that all Things that are Good andEvil do not appear purely so to Man, but mixt together, the goodwith the bad, and the bad with the good; and because differentObjects do particularly affect divers Parts, as it were, of a Man; for instance, someregard that good Opinion and Respect that a Man has for himself; some affect theoutward Senses; and some that Love of himself, from which he desires his ownPreservation. From whence it is, that those of the first Sort appear to him asreputable; of the second as pleasant; and of the last as profitable: And accordingly aseach of these have made a powerful Impression upon a Man, it brings upon him apeculiar Propensity towards that way; whereto may be added the particularInclinations and Aversions that are in most Men to some certain Things. From allwhich it comes to pass, that upon any Action several Sorts of Good and Evil offerthemselves, which either are true or appear so; which some have more, some lessSagacity to distinguish with solidity of Judgment. So that ’tis no wonder that one Manshould be carried eagerly on to that which another perfectly abhors.

But neither is the Will of Man always found to stand equallypoised with regard to every Action, that so the Inclination thereofto this or that Side should come only from an Internal Impulse,after a due Consideration had of all its Circumstances; but it isvery often pusht on one way rather than another by someoutward Movements. For, that we may pass by that universalPropensity to Evil, which is in all Mortals (the Original and Nature of which belong tothe Examination of another *Forum;) first, a peculiar Disposition of Nature puts aparticular kind of byass upon the Will, by which some are strongly inclin’d to certainsorts of Actions; and this is not only to be found in single Men, but in whole Nations.This seems to proceed from the Temperature of the Air that surrounds us, and of theSoil; and from that Constitution of our Bodies which either was deriv’d to us in theSeed of our Parents, or was occasion’d in us by our Age, Diet, the want or enjoymentof Health, the Method of our Studies, or way of Living, and Causes of that sort; besidethe various formations of the Organs, which the Mind makes use of in thePerformance of its several Offices, and the like. And here, beside that a Man may withdue Care very much alter the Temperament of his Body, and repress the Exorbitancesof his natural Inclination, it is to be noted, that how much Power soever we attributehereto, yet it is not to be understood to be of that Force as to hurry a Man into such a



XIII.

By Custom orHabitude. L. N. N. l.1. c. 4. §6.

XIV.

By Passion. L. N. N.l. 1. c. 4. §7.

XV.

By intoxication. L. N.N. l. 1. c. 4. §8.

Violation of the Law of Nature, as shall render him obnoxious to the Civil Judicature,where evil Desires are not animadverted on, † provided they break not forth intoexternal Actions. So that after all the Pains that can be taken to repel Nature, if it takesits full Swinge, yet it may so far be restrain’d as not to produce open Acts ofWickedness; and the Difficulty which happens in vanquishing these Propensities isabundantly recompens’d in the Glory of the Conquest. But if these Impulses are sostrong upon the Mind, that they cannot be contain’d from breaking forth, yet theremay be found a Way, as it were to draw them off, without Sin.

The frequent Repetition of Actions of the same kind does alsoincline the Will to do certain Things; and the Propensity whichproceeds from hence is called Habit or Custom; for it is by thisthat any Thing is undertaken readily and willingly; so that theObject being presented, the Mind seems to be forced thitherward,or if it be absent, the same is earnestly desirous of it. Concerningwhich this is to be observ’d, That as there appears to be no Custom, but what a Manmay, by applying a due Care, break and leave off; so neither can any so far put a forceupon the Will, but that a Man may be able at any Time to restrain himself from anyexternal Acts at least, to which by that he is urged. And because it was in the Personsown Power to have contracted this Habit or not, whatsoever easiness it brings to anyAction, yet if that Action be good, it loses nothing of its Value therefore, as neitherdoth an evil Thing abate ought of its Pravity. But as a good Habit brings Praise to aMan, so an ill one shews his Shame.

It is also of great Consideration, whether the Mind be in a quietand placid State, or whether it be affected with those peculiarMotions we call the Passions. Of these it is to be known, thathow violent soever they are, a Man with the right Use of hisReason may yet conquer them, or at least contain them so farwithin Bounds, as to hinder them from producing those Actions they prompt Men todo. * But whereas of the Passions some are rais’d from the Appearance of Good, andothers of Evil; and do urge either to the procuring of somewhat that is acceptable, orto the avoiding of what is mischievous, it is agreeable to Human Nature, that theseshould meet among Men more favour and pardon, than those; and that according tosuch degrees as the Mischief that excited them was more hurtful and intolerable. Forto want a Good not altogether necessary to the Preservation of Nature is accountedmore easie, than to endure an Evil which tends to Nature’s Destruction.

Farthermore, as there are * certain Maladies, which take away allUse of the Reason either perpetually or for a time: So ’tiscustomary in many Countries, for Men on purpose to procure tothemselves a certain kind of Disease which goes off in a shorttime, but which very much confounds the Reasoning Faculty. Bythis we mean Drunkenness; proceeding from certain kinds of Drink, and Fumes,which hurry and disturb the Blood and Spirits, thereby rendring Men very prone toLust, Anger, Rashness and immoderate Mirth; so that many by Drunkenness are set asit were beside themselves, and seem to have put on another Nature, than that whichthey were of, when sober. But as this does not always take away the whole Use of



XVI.

Actions Involuntary,mixt. L. N. N. l. 1. c.4. §11.

XVII.

Voluntary Actionsimputable. L. N. N. l.1. c. 5. §5.

XVIII.

Conclusions from thePremisses.

The first Conclusion.L. N. N. l. 1. c. 5. §6.

Reason; so, as far as the Person does willingly put himself in this State, it is apt toprocure an Abhorrence rather than a favourable Interpretation of what is done by itsImpulse.

Now of Human Actions, as those are call’d Voluntary, whichproceed from, and are directed by the Will; so if any thing bedone wittingly, altogether against the Will, these are call’dInvoluntary, taking the Word in the narrowest sense; for taking itin the largest, it comprehends even those which are done throughIgnorance. But Involuntary in this place is to signifie the same asforc’d; that is, when by an external Power which is stronger, a Man is compell’d touse his Members in any Action, to which he yet signifies his Dissent and Aversion bySigns, and particularly by counterstriving with his Body. Less properly those Actionsare also called Involuntary, which by the Imposition of a great Necessity are chosen tobe done, as the lesser Evil; and for the Acting whereof the Person had the greatestAbomination, had he not been set under such Necessity. These Actions therefore arecall’d Mixt. With Voluntary Actions they have this in common, that in the presentState of Things the Will chuses them as the lesser Evil. With the Involuntary they areafter a sort the same, as to the Effect, because they render the Agent either not at all,or not so heinously blameable, as if they had been done spontaneously.

Those Human Actions then which proceed from, and are directedby the Understanding and the Will, have particularly this naturalPropriety, * that they may be imputed to the Doer; that is, that aMan may justly be said to be the Author of them, and be oblig’dto render an Account of such his Doing; and the Consequencesthereof, whether good or bad, are chargeable upon him. For therecan be no truer Reason why any Action should be imputable to a Man, than that hedid it either mediately or immediately knowingly and willingly; or that it was in hisPower to have done the same or to have let it alone. Hence it obtains as the primeAxiom in Matters of Morality which are liable to the Human Forum: That every Manis accountable for all such Actions, the Performance or Omission of which were in hisown Choice. Or, which is tantamount, That every Action that lies within a Man’sPower to perform or omit, is chargeable upon him who might or might not have doneit. So on the contrary, no Man can be reputed the Author of that Action, which neitherin it self nor in its cause, was in his Power.

From these Premisses we shall deduce some particularPropositions, by which shall be ascertain’d, what every Manought to be accountable for; or, in other Words, which are thoseActions and Consequences of which any one is to be charged asAuthor.

None of those Actions which are done by another Man, nor anyOperation of whatsoever other things; neither any Accident, canbe imputable to any Person, but so far forth as it was in hisPower, or as he was oblig’d to guide such Action. For nothing is more common in theWorld, than to subject the Doings of one Man to the Manage and Direction of



XIX.

The secondConclusion. L. N. N.l. 1. c. 5. §7.

XX.

The ThirdConclusion. L. N. N.l. 1. c. 5. §10.

another. Here then, if any thing be perpetrated by one, which had not been done, if theother had performed his Duty and exerted his Power; this Action shall not only bechargeable upon him who immediately did the Fact, but upon the other also whoneglected to make use of his Authority and Power. And yet this is to be understoodwith some restriction; so as that Possibility may be taken morally, and in a largeSense. For no Subjection can be so strict, as to extinguish all manner of Liberty in thePerson subjected; but so, that ’twill be in his Power to resist and act quite contrary tothe Direction of his Superior; neither will the State of Human Nature bear, that anyone should be perpetually affix’d to the side of another, so as to observe all hisMotions. Therefore when a Superiour has done every thing that was requir’d by theRules of his Directorship, and yet somewhat is acted amiss, this shall be laid only tothe charge of him that did it. Thus, whereas Man exercises Dominion over otherAnimals, what is done by them to the detriment of another, shall be charged upon theOwner, as supposing him to have been wanting of due Care and Circumspection. Soalso all those Mischiefs which are brought upon another, may be imputed to thatPerson, who when he could and ought, yet did not take out of the way the Cause andOccasion thereof. Accordingly it being in the Power of Men to promote or suspendthe Operations of many Natural Agents, whatsoever Advantage or Damage is wroughtby these, they shall be accountable for, by whose application or neglect the same wasoccasion’d. Beside, sometimes there are extraordinary Cases, when a Man shall becharged with such Events as are above human Direction, as when God shall doparticular Works with regard to some single Person. [So the Pestilence in Israel maybe charg’d upon David for numbring the People; 2 Sam. xxiv. or the three Year’sDrought to the Prayers of Elijah, 1 Kings xvii. and the like.] These and such Casesbeing excepted, no Man is responsible but for his own Actions.

WHATSOEVER Qualifications a Man has or has not, which it isnot in his Power to exert or not to exert, must not be imputed tohim, unless so far as he is wanting in Industry to supply suchNatural Defect, or does not rouse up his native Faculties. So,because no man can give himself an Acuteness of Judgment andStrength of Body; therefore no one is to be blam’d for Want ofeither, or commended for having them, except so far as he improv’d, or neglected thecultivating thereof. Thus Clownishness is not blameable in a Rustic, but in a Courtieror Citizen. And hence it is, that those Reproaches are to be judg’d extremely absurd,which are grounded upon Qualities, the Causes of which are not in our Power, as,Short Stature, a deform’d Countenance, and the like.

Farther, We are not chargeable for those Things, which we dothro’ Invincible Ignorance. Because we have nothing but theLight of our Understanding to direct our Actions by; and in thiscase it is supposed that the Agent neither had, nor possibly couldhave, this Light for his Direction at that time, and that it was nothis own Fault that made it not possible for him then to come atproper Knowledge. When we say not possible for him to know, we must beunderstood in a Moral not a Physical Sense; that is, it was not possible to come to thisKnowledge by the usual and common Means, by using his best Care and Attention,



XXI.

The fourthConclusion.

XXII.

The fifth Conclusion.

XXIII.

The sixth Conclusion.L. N. N. l. 1. c. 5. §8.

XXIV.

The seventhConclusion. L. N. N.l. 1. c. 5. §9.

and by giving such Diligence, Precaution, and Circumspection, as in all reason maybe thought sufficient for the attaining such Knowledge.

Ignorance of a Man’s Duty, or of those Laws from whence hisDuty arises, or Error about either of them, does not excuse fromblame. For whosoever imposes Laws and Services, is wont andought to take care that the Subject have notice thereof. And theseLaws and Rules of Duty generally are and should be order’d tothe Capacity of such Subject, if they are such as he is obliged to know and remember.Hence, he who is the Cause of the Ignorance shall be bound to answer for thoseActions which are the Effects thereof.

He who, not by his own fault, wants an Opportunity of doing hisDuty, shall not be accountable, because he has not done it. AnOpportunity of doing our Duty comprehends these four requisiteConditions: 1. That an Object of Action be ready: 2. That aproper Place be had, where we may not be hindred by others, nor receive anyMischief: 3. That we have a fit Time, when Business of greater Necessity is not to bedone, and which is equally seasonable for those Persons who are to concur with us inthe Action: and 4. Lastly, That we have natural Force sufficient for the performancer.For since an Action cannot be atchiev’d without these, ’twould be absurd to blame aMan for not acting, when he had not an Opportunity so to do. Thus, a Physiciancannot be accus’d of Sloth, when no body is sick to employ him. Thus, no Man can beliberal, who wants himself. Thus he cannot be reprov’d for burying his Talent whohaving taken a due care to set himself in an useful Station, has yet miss’d of it: tho’ itbe said, *To whom much is given, from him much shall be requir’d.† Thus we cannotblow and suck all at once.

No Man is accountable for not doing that which exceeded hisPower, and which he had not Strength sufficient to hinder oraccomplish. Hence that Maxim, To Impossibilities there lies noObligation. But this Exception must be added, Provided, that bythe Person’s own Fault he has not impaired, or lost that Strengthwhich was necessary to the Performance; for if so, he is to be treated after the samemanner, as if he had all that Power which he might have had: Otherwise it would beeasie to elude the Performance of any difficult Obligation, by weakening one’s self onpurpose.

Neither can those things be imputable, which one acts or suffersby Compulsion. For it is supposed, that ’twas above his power todecline or avoid such doing or suffering. But we are said after atwofold manner to be compell’d; one way is, when another that’sstronger than us violently forces our Members to do or enduresomewhat; the other, ‡ when one more powerful shall threatensome grievous Mischief (which he is immediately able to bring upon us) unless wewill, as of our own accord, apply our selves to the doing of this, or abstain from doingthat. For in these cases unless we are expressly obliged to take the Mischief to ourselves which was to be done to another, he that sets us under this Necessity, is to be



XXV.

The eighthConclusion.

XXVI.

The ninth Conclusion.L. N. N. l. 1. c. 5 §11.

L. N. N. l. 1. c. 5.§14.

XXVII. Imputation ofanother’s Actions. L.N. N. l. 1. c. 5. §14.

reputed the Author of the Fact; and the same is no more chargeable upon us, than aMurder is upon the Sword or Ax which was the Instrument.

The Actions of those who want the Use of their Reason are notimputable; because they cannot distinguish clearly what they do,and bring it to the Rule. Hitherto appertain the Actions ofChildren, before their reasoning Faculties begin to exertthemselves. For though they are now and then chid or whipt forwhat they do; yet it is not from hence to be concluded, that their Actions are reallyCrimes, or that in strictness they deserve this punishment for them; which they receivenot as from Justice, but in Prudence to prevent their growing troublesome to others,and lest they contract ill Habits in themselves when they are little, and so keep themwhen they are grown up. So also the Doings of Franticks, Crackbrains, and Dotardsare not accounted Human Actions, nor imputable to those who contracted suchincapacitating Disease, without any fault of their own.

Lastly, A Man is not chargeable with what he seems to do in hisDreams; unless by indulging himself in the Day-time with idleThoughts, he has deeply impressed the Ideas of such Things inhis Mind; (tho’ Matters of this Sort can rarely be within theCognizance of the Human Forum.) For indeed the Fansie inSleep is like a Boat adrift without a Guide; so that ’tis impossible for any Man toorder what Ideas it shall form.

But concerning the Imputation of another Man’s Actions, it issomewhat more distinctly to be observ’d, that sometimes it mayso happen, that an Action ought not at all to be charged upon himthat immediately did it, but upon another who made use of thisonly as an Instrument. But it is more frequent, that it should beimputed both to him who perpetrated the thing, and to the other,who by doing or omitting something, shew’d his concurrence to the Action. And thisis chiefly done after a threefold manner; either, 1. As the other was the principalCause of the Action, and this less principal. Or, 2. As they were both equallyconcern’d. Or, 3. As the other was less principal, and he that did the Act wasprincipal. To the first Sort belong those who shall instigate another to any thing bytheir Authority; those who shall give their necessary Approbation, without which theother could not have acted; those who could and ought to have hindred it, but did not.To the second Class appertain, those who order such a thing to be done, or hire a Manto do it; those who assist; those who afford harbour and protection; those who had itin their Power, and whose Duty it was to have succour’d the wronged Person, butrefus’d it. To the third Sort are refer’d such as are of *counsel to the Design; † thosethat encourage and commend the Fact before it be done; and such as incite Men tosinning by their Example, and the like.



I.

The Necessity of aRule.

L. N. N. l. 2. c. 1.

II.

Law, defined. L. N.N. l. 1. c. 6. §4.

III.

Obligation. L. N. N. l.1. c. 6. §5.

IV.

Man capable of beingobliged. L. N. N. l. 1.c. 6. §6.


Chapter Ii

Of The Rule Of Human Actions, Or Of Laws In General; AndThe Different Qualifications Of Those Actions

Because all Human Actions depending upon the Will, have theirEstimate according to the concurrence thereof; but the Will ofevery Person not only differs in many respects from that of allothers, but also alters and changes it self, becoming different inthe same Person at one time from what it was before at another;therefore to preserve Decency and Order among Mankind,it was necessary there should be some Rule, by which theyshould be regulated. For otherwise, if, where there is so great aLiberty of the Will, and such Variety of Inclinations and Desires, any Man might dowhatsoever he had a mind to, without any regard to some stated Rule, it could not butgive occasion to vast Confusions among Mankind.

This Rule is call’d Law; which is, *A Decree by which theSuperior obliges one that is subject to him, to accommodate hisActions to the Directions prescrib’d therein.2

That this Definition may the better be understood, it must first beenquired, What is an Obligation; whence is its Original; who iscapable of lying under an Obligation; and who it is that canimpose it. By Obligation then is usually meant, A moral Bond,whereby we are ty’d down to do this or that, or to abstain fromdoing them.3 That is, hereby a kind of a Moral Bridle is put upon our Liberty; so thatthough the Will does actually drive another way, yet we find our selves hereby struckas it were with an internal Sense, that if our Action be not perform’d according to theprescript Rule, we cannot but confess we have not done right; and if any Mischiefhappen to us upon that Account, we may fairly charge our selves with the same;because it might have been avoided, if the Rule had been follow’d as it ought.

And there are two Reasons why Man should be subject to anObligation; one is, because he is endow’d with a Will, whichmay be divers ways directed, and so be conform’d to a Rule: theother, because Man is not exempt from the Power of a Superior.For where the Faculties of any Agent are by Nature form’d onlyfor one Way of acting, there ’tis to no purpose to expect anything to be done of choice: and to such a Creature ’tis in vain to prescribe any Rule;because ’tis uncapable of understanding the same, or conforming its Actions thereto.Again, if there be any one who has no Superior, then there is no Power that can ofright impose a Necessity upon him; and if he perpetually observes a certain Rule inwhat he does, and constantly abstains from doing many things, he is not to beunderstood to act thus from any Obligation that lies upon him, but from his own good



V.

Who can oblige. L. N.N. l. 1. c. 6. §9.

VI.

The Legislator andthe true meaning ofthe Law to be known.L. N. N. l. 1. c. 6.§14.

pleasure. It will follow then, for any one to be capable of lying under Obligation, it isnecessary, that on the one hand he have a Superior, and on the other, that he be bothcapable of understanding the Rule prescrib’d him by his Superior, and also endu’dwith a Will which may be directed several ways; and yet which (when the Law ispromulged by his Superior) knows he cannot rightly depart therefrom. And with allthese Faculties, ’tis plain, Mankind is furnish’d.

An Obligation is superinduced upon the Will of Men properly bya Superior; that is, not only by such a one as being greater orstronger, can punish Gainsayers: but by him who has justReasons to have a Power to restrain the Liberty of our Will at hisown Pleasure.4 Now when any man has either of these, as soonas he has signify’d what he would have, it necessarily stirs up, in the Mind of theparty concern’d, Fear mixt with Reverence; the first arises from the consideration ofhis Power, the5 other proceeds from those Reasons on which the Authority of ourSuperior is founded; by which we are convinced, that had we nothing to fear fromhim, yet we ought to conform our Actions to his Will. For he that can give me noother Reason for putting me under an Obligation against my Will, beside this, thathe’s too strong for me, he truly may so terrifie me, that I may think it better to obeyhim for a while than suffer a greater Evil: but when this Fear is over, nothing anylonger hinders, but that I may act after my own Choice and not his. On the contrary,he that has nothing but Arguments to prove that I should obey him, but wants Powerto do me any Mischief, if I deny: I may with Impunity slight his Commands, exceptone more potent take upon him to make good his despis’d Authority. Now theReasons upon which one Man may justly exact Subjection from another, are two:6First, if he have been to the other the Original of some extraordinary Good; and if itbe plain, that he designs the others Welfare, and is able to provide better for him than’tis possible for himself to do; and on the same Account does actually lay claim to theGovernment of him: Secondly, if any one does voluntarily surrender his Liberty toanother, and subject himself to his Direction.

Farthermore, that a Law may exert its Force in the Minds ofthose to whom it is promulged, it is requir’d, that both theLegislator and the Law also be known. For no Man can payObedience, if he know not whom he is to obey, and what he is toperform. Now the Knowledge of the Legislator is very easy;because from the Light of Reason ’tis certain the same must bethe Author of all the Laws of Nature, who was the Creator of theUniverse: Nor can any Man in Civil Society be ignorant who it is that has Power overhim.7 Then for the Laws of Nature, it shall be hereafter declar’d how we come to theKnowledge of them. And as to the Laws of a Man’s Country or City, the Subject hasnotice given of them by a Publication plainly and openly made. In which these twoThings ought to be ascertain’d, that the Author of the Law is he, who hath theSupreme Authority in the Community; and that this or that is the true Meaning of theLaw. The First of these is known, if he shall promulge the Law with his own Mouth,or deliver it under his own Hand; or else if the same be done by such as are delegatedto that purpose by him, whose Authority there is no Reason to call in question, if it bemanifest, that such their acting belongs to that Office they bear in the Publick, and that



VII.

Two parts of a perfectLaw. L. N. N. l. 1. c.6. §14.

VIII.

It ought to commandthings possible andbeneficial.

IX.

Power of Dispensing.L. N. N. l. 1. c. 6 §17.

X.

Equity. L. N. N. l. 5.c. 2. §21.

they are regularly placed in the Administration thereof; if these Laws are brought inuse at judicial Proceedings, and if they contain nothing derogatory to the Sovereign’sPower. That the Latter, that is, the true Sense of the Law may be known, it is the Dutyof those who promulge it, in so doing to use the greatest Perspicuity and Plainness;and if any thing obscure do occur therein, an Explanation is to be sought of theLegislator, or of those who are publickly constituted to give judgment according to theLaws.

Of every perfect Law there are two Parts: One, [Precept]whereby it is directed what is to be done or omitted: the other,[the Sanction] wherein is declared what Punishment he shallincur, who neglects to do what is commanded, or attempts thatwhich is prohibited. For as through the Pravity of Human Natureever inclining to things forbidden, it is to no purpose to say, Dothis, if no Punishment shall be undergone by him who disobeys; so it were absurd tosay, You shall be punish’d, except some Cause preceeded, by which a Punishmentwas deserv’d. Thus then all the force of a Law consists in signifying what theSuperior requires or forbids to be done, and what Punishment shall be inflicted uponthe Violators. But the Power of obliging, that is, of imposing an intrinsick Necessity;and the Power of forcing, or, by the proposal of Punishments compelling theObservation of Laws, is properly in the Legislator, and in him to whom theGuardianship and Execution of the Laws is committed.

Whatsoever is enjoyn’d by any Law, ought not only to be in thePower of him to perform on whom the Injunction is laid, but itought to contain somewhat advantagious either to him or others.For as it would be absurd and cruel to exact the doing of anything from another, under a Penalty, which it is and always wasbeyond his Power to perform; so it would be silly and to nopurpose to put a Restraint upon the natural Liberty of the Will of any man, if no oneshall receive any Benefit therefrom.

But though a Law does strictly include all the Subjects of theLegislator who are concern’d in the Matter of the same, andwhom the same Legislator at first intended not to be exempted:yet sometimes it happens that particular persons may be clear’dof any obligation to such Law: and this is call’d Dispensing. Butas he only may dispense, in whose Power it is to make and abrogate the Law; * sogreat Care is to be taken, lest by too frequent Dispensations, and such as are grantedwithout very weighty Reasons, the Authority of the Law be shaken, and occasion begiven of Envy and Animosities among Subjects.

Yet there is a great Difference between Equity and Dispensing:Equity being a Correction of that in which the Law, by reason ofits General Comprehension, was deficient: or an aptInterpretation of the Law, by which it is demonstrated, that theremay be some peculiar Case which is not compriz’d in theUniversal Law, because if it were, some Absurdity would follow. For it being



XI.

Actions allowable,good and bad. L. N.N. l. 1. c. 7. §1.

XII.

Justice of Persons. L.N. N. l. 1. c. 7. §6.

XIII.

Of Actions. L. N. N. l.1. c. 7. §7.

XIV.

Division of Justice. L.N. N. l. 1. c. 7. §8.

impossible that all Cases, by Reason of their infinite Variety, should be eitherforeseen or explicitly provided for; therefore the Judges, whose Office it is to applythe general Rules of the Laws to special Cases, ought to except such from theInfluence of them, * as the Lawgiver himself would have excepted if he were present,or had foreseen such Cases.

Now the Actions of Men obtain certain Qualities andDenominations from their relation to and agreement with theLaw of Morality. And all those Actions, concerning which theLaw has determin’d nothing on either side, are call’d allowable,[indifferent] or permitted. Here we may observe, that in CivilLife, where it is impossible to come to perfect Exactness in allpoints, even † those things are said to be allowable, upon which the Law has notassign’d some Punishment, though they are in themselves repugnant to NaturalHonesty. We call those Actions which are consonant to the Law good, and those thatare contrary to it bad: But that any Action should be good, ’tis requisite, that it beexactly agreeable in every ‡ point to the Law; whereas it may be evil if it be deficientin one Point only.

As for Justice, it is sometimes the Attribute of Actions,sometimes of Persons. When it is attributed to Persons, ’tisusually defin’d to be, A constant and perpetual Desire of givingevery one their own.8 For he is called a just Man, who isdelighted in doing righteous Things, who studies Justice, and inall his Actions endeavours to do that which is right. On the other side, the unjust Manis he that neglects the giving every Man his own, or, if he does, ’tis not because ’tisdue, but from expectation of Advantage to himself. So that a just Man may sometimesdo unjust Things, and an unjust Man that which is just. But the Just does that which isright, because he is so commanded by the Law; and never commits any unjust Actsbut only through Infirmity; whereas the wicked Man does a just Thing for fear of thePunishment which is the Sanction of the Command, but such unjust Acts as hecommits proceed from the Naughtiness of his Heart.

But the Justice of Actions not only consists in their dueConformity to Law, but it includes in it likewise a rightApplication of them to those Persons to whom the Action isperform’d: So that we apprehend that Action to be just, which,with full Design and Intention, is apply’d to the Person to whomit is due. Herein therefore, the Justice of Actions differs from their Goodness chiefly,that the latter simply denotes an Agreement with the Law; whereas Justice alsoincludes the Regard they have to those *Persons upon whom they are exercised. Uponwhich Account Justice is call’d a Relative Virtue.

Men do not generally agree about the Division of Justice. Themost receiv’d Distinction is, into Universal and Particular. Thefirst is, when every Duty is practised and all right done to others,* even that which could not have been extorted by Force, or bythe Rigor of Law. The latter is, when that Justice only is done a



XV.

Injustice what. L. N.N. l. 1. c. 7. §14.

XVI.

Laws distinguisht.Natural and PositiveL. N. N. l. 1. c. 6.§18.

Man, which in his own right he could have demanded; and this is wont to be againdivided into †Distributive and Commutative. The Distributive takes place in Contractsmade between Partners in Fellowship, concerning fair Partition of Loss and Gainaccording to a rate. * The Commutative is mostly in Bargains made upon even handabout Things and Doings relating to Traffick and Dealing.

Knowing thus, what Justice is, ’tis easie to collect what isInjustice. Where it is to be observ’d, that such an unjust Action iscall’d Wrong-doing, which is premeditately undertaken, and bywhich a Violence is done upon somewhat which of absoluteRight was another Man’s due, or, which by like Right he oneway or other stood possess’d of. And this Wrong may be done after a threefoldManner: 1. If that be deny’d to another which in his own right he might demand (notaccounting that which from Courtesie or the like Virtue may be another’s due): Or, 2.If that be taken away from another, of which by the same right, then valid against theInvader, he was in full possession: Or, 3. If any Damage be done to another, which wehad not Authority to do to him. Beside which, that a Man may be charged withInjustice, it is requisite that there be a naughty Mind and an evil Design in him thatacts it. For if there be nothing of these in it, then ’tis only call’d Misfortune, or anError; and that is so much slighter or more grievous, as the Sloth and Negligencewhich occasion’d it was greater or less.

Laws, with respect to their Authors, are distinguished into Divineand Humane; that proceeds from God, and this from Men. But ifLaws be considered, as they have a necessary and universalCongruity with Mankind, they are then distinguisht into Naturaland Positive.*Natural Law is that which is so agreeable with therational and sociable Nature of Man, that honest and peaceableSociety could not be kept up amongst Mankind without it, Hence it is, that this may besought out, and the knowledge of it acquired by the light of that Reason, which is bornwith every Man, and by a consideration of Human Nature in general. Positive Law isthat which takes not its rise from the common condition of Human Nature, but onlyfrom the good pleasure of the Legislator: This likewise ought to have its Foundationin Reason, and its End ought to be some Advantage to those Men, or that Society, forwhich it is designed. Now the Law Divine, is either Natural or Positive; but allHuman Laws, strictly taken, are Positive.



I.

Law Natural obvious.L. N. N. l. 2. c. 3.

II.

Self Preservation.

III.

Society absolutelynecessary. L. N. N. l.2. c. 1. §8.


Chapter Iii

Of The Law Of Nature In General

That Man, who has thoroughly examined the Nature andDisposition of Mankind, may plainly understand what the LawNatural is, the Necessity thereof, and which are the Precepts itproposes and enjoyns to Mankind. For, as it much conduces tohim who would know exactly the Polity of any Community, thathe first well understand the Condition thereof, and the Manners and Humours of theMembers who constitute it: So to him who has well studied the common Nature andCondition of Man, it will be easie to discover those Laws which are necessary for theSafety and common Benefit of Mankind.

This then Man has in common with all the Animals, who have aSense of their own Beings; that he accounts nothing dearer thanHimself; that he studies all manner of ways his ownPreservation; and that he endeavours to procure to himself suchthings as seem good for him, and to avoid and keep off those that are mischievous.And this Desire of Self-Preservation regularly is so strong, that all our other Appetitesand Passions give way to it. So that whensoever an Attempt is made upon the Life ofany man, though he escape the danger threatned, yet he usually resents it so, as toretain a Hatred still, and a desire of Revenge on the Aggressor.

But in one particular, Man seems to be set in a worse conditionthan that of Brutes, that hardly any other Animal comes into theworld in so great weakness; so that ’twould be a kind of Miracle,if any man should arrive at a mature Age, without the aid ofsome body else. For even now, after so many helps found out forthe Necessities of Human Life; yet a many Years careful Study isrequired before a Man shall be able of himself to get Food and Raiment.* Let ussuppose a Man come to his full Strength without any oversight or instruction fromother Men; suppose him to have no manner of Knowledge but what springs of it selffrom his own natural Wit; and thus to be placed in some Solitude, destitute of anyHelp or Society of all Mankind beside. Certainly a more miserable Creature cannot beimagined. He is no better than dumb, naked, and has nothing left him but Herbs andRoots to pluck, and the wild Fruits to gather; to quench his thirst at the next Spring,River, or Ditch; and to shelter himself from the Injuries of the Weather, by creepinginto some Cave, or covering himself after any sort with Moss or Grass; to pass awayhis tedious life in Idleness; to start at every Noise, and be afraid at the sight of anyother Animal; in a Word, at last to perish either by Hunger, or Cold, or some wildBeast. It must then follow, that whatsoever Advantages accompany Human Life, areall owing to that mutual Help Men afford one another. So that, next to DivineProvidence, there is nothing in the world more beneficial to Mankind than Menthemselves.



IV.

Men to Meninclinable to do hurt.L. N. N. l. 2. c. 1. §6.l. 7. c. 1. §4.

V.

And very capable ofit.

VI.

And likely so to do.L. N. N. l. 2. c. 1. §7.

And yet, as useful as this Creature is, or may be, to others of itskind, it has many Faults, and is capable of being equally noxious;which renders mutual Society between Man and Man not a littledangerous, and makes great Caution necessary to be usedtherein, lest Mischief accrue from it instead of Good. In the firstplace, a stronger Proclivity to injure another is observ’d to begenerally in Man, than in any of the Brutes; for they seldom grow outragious, butthrough Hunger or Lust, both which Appetites are satisfi’d without much Pains; andthat done, they are not apt to grow furious, or to hurt their Fellow-Creatures, withoutsome Provocation. Whereas Man is an Animal always prone to Lust, by which he ismuch more frequently instigated, than seems to be necessary to the Conservation ofhis Kind. His Stomach also is not only to be satisfied, but to be pleased; and it oftendesires more than Nature can well digest. As for Raiment, Nature has taken Care ofthe rest of the Creatures that they don’t want any: But Men require not only such aswill answer their Necessity, but their Pride and Ostentation. Beside these, there aremany Passions and Appetites unknown to the Brutes, which are yet to be found inMankind; as, an unreasonable Desire of possessing much more than is necessary, anearnest pursuit after Glory and Pre-eminence; Envy, Emulation, and Outvyings of Wit.A Proof hereof is, that most of the Wars with which Mankind is harrass’d, are rais’dfor Causes altogether unknown to the Brutes. Now all these are able to provoke Mento hurt one another, and they frequently do so. Hereto may be added the greatArrogance that is in many Men, and Desire of insulting over others, which cannot butexasperate even those who are naturally meek enough; and from a Care of preservingthemselves and their Liberty, excite them to make Resistance. Sometimes also Wantsets Men together by the Ears,9 or because that Store of Necessaries which they haveat present seems not sufficient for their Needs or Appetites.

Moreover, Men are more able to do one another Harm thanBrutes are. For tho’ they don’t look formidable with Teeth,Claws, or Horns, as many of them do; yet the Activity of theirHands renders them very effectual Instruments of Mischief; andthen the Quickness of their Wit gives them Craft, and a Capacityof attempting that by Treachery which cannot be done by open Force. So that ’tis veryeasie for one Man to bring upon another the greatest of all Natural Evils, to wit,Death itself.

Beside all this, it is to be consider’d, that among Men there is avast Diversity of Dispositions, which is not to be found amongBrutes; for among Brutes, all of the same Kind have the likeInclinations, and are led by the same inward Motions andAppetites: Whereas among Men, there are so many Minds asthere are Heads, and every one has his singular Opinion; nor are they all acted withsimple and uniform Desires, but with such as are manifold and variously mixttogether. Nay, one and the same Man shall be often seen to differ from himself, and todesire that at one Time which at another he extremely abhorred. Nor is the Varietyless discernable, which is now to be found in the almost infinite Ways of living, ofdirecting our Studies, or Course of Life, and our Methods of making use of our Wits.



VII.

The Sum of theforegoing Paragraphs.

VIII.

Law Natural defin’d.

IX.

The Means design’dwhere the End is so.L. N. N. l. 2. c. 3.§15.

X.

A God andProvidence. L. N. N.l. 2. c. 3. §19.

XI.

God the Author of theLaw of Nature. L. N.N. l. 2. c. 3. §20.

Now, that by Occasion hereof Men may not dash against one another, there is need ofwise Limitations and careful Management.

So then Man is an Animal very desirous of his ownPreservation; of himself liable to many Wants; unable to Supporthimself without the Help of other of his Kind; and yetwonderfully fit in Society to promote a common Good: But thenhe is malicious, insolent, and easily provok’d, and not less proneto do Mischief to his Fellow than he is capable of effecting it. Whence this must beinferr’d, that in order to his Preservation, ’tis absolutely necessary, that he besociable,10 that is, that he join with those of his Kind, and that he so behave himselftowards them, that they may have no justifiable Cause to do him Harm, but rather topromote and secure to him all his Interests.

The Rules then of this Fellowship, which are the Laws of HumanSociety, whereby Men are directed how to render themselvesuseful Members thereof, and without which it falls to pieces, arecalled the Laws of Nature.

From What has been said, it appears, that this is a11fundamentalLaw of Nature, That every man ought, as much as in him lies, topreserve and promote Society: That is, the Welfare of Mankind.*And since he that designs the End, cannot but be supposed todesign those Means without which the End cannot be obtain’d, itfollows that all such Actions as tend generally and are absolutelynecessary to the Preservation of this Society, are commanded by the Law of Nature;as, on the contrary, those that disturb and dissolve it are forbidden by the same. Allother Precepts are to be accounted only Subsumptions, or Consequences upon thisUniversal Law, the Evidence whereof is made out by that Natural Light which isengrafted in Mankind.

Now though these Rules do plainly contain in themselves thatwhich is for the general Good; yet that the same may obtain theForce of Laws, it must necessarily be presuppos’d, that there is aGod, who governs all Things by his Providence, and that He hasenjoyn’d us Mortals, to observe these Dictates of our Reason asLaws, promulged by him to us by the powerful Mediation of thatLight which is born with us. Otherwise we might perhaps pay some obedience tothem in contemplation of their Utility, so as we observe the Directions of Physiciansin regard to our Health, * but not as Laws, to the Constitution of which a Superior isnecessary to be supposed, and that such a one as has actually undertaken theGovernment of the other.12

But, that God is the Author of the Law of Nature, is thusdemonstrated13 (considering Mankind only in its present State,without enquiring whether the first Condition of us Mortals wasdifferent from this, nor how the Change was wrought.) Whereasour Nature is so framed, that Mankind cannot be preserv’d



XII.

This Law how writtenin Man’s Heart.

Rom. ii. 15.

XIII.

Division of NaturalDuties. L. N. N. l. 2.c. 3. §24.

without a sociable Life, and whereas it is plain that the Mind of Man is capable of allthose Notions which are subservient to this purpose; and it is also manifest, that Mennot only, like the other Creatures, owe their Original to God, but that He governsthem, (let their Condition be as it will) by the Wisdom of his Providence. Hence itfollows, that it must be supposed to be the Will of God, that Man should make use ofthose Faculties with which he is peculiarly endow’d beyond the Brutes, to thePreservation of his own Nature: and consequently, that the Life of Man should bedifferent from the lawless Life of the Irrational Creatures. And since this cannototherwise be atchiev’d, but by an Observance of the Law Natural, it must beunderstood, that there is from God an obligation laid upon Man to pay Obediencehereto, as a Means not invented by the Wit, or imposed by the Will of Men, norcapable of being changed by their Humours and Inclinations; but expressly ordain’dby God himself in order to the accomplishing this End. For he that obliges us topursue such an End, must be thought to oblige us to make use of those Means whichare necessary to the attainment thereof. And that the Social Life is positively enjoyn’dby God upon Men, this is a Proof, that in no other Animal is to be found any Sense ofReligion or Fear of a Deity, which seems not so much as to fall within theUnderstanding of the ungovernable Brute; and yet it has the power to excite in theminds of Men, not altogether profligate, the tenderest Sense; by which they areconvinced, that by sinning against this Law Natural, they offend him who is Lord ofthe Soul of Man, and who is to be fear’d, even where we are secure of anyPunishment from our Fellow-Creatures.

Though it be usually said, that we have the Knowledge of thisLaw from Nature it self, yet this is not so to be taken, as if therewere implanted in the Minds of Men just new born, plain anddistinct Notions concerning what is to be done or avoided. ButNature is said thus to teach us, * partly because the Knowledgeof this Law may be attain’d by the help of the Light of Reason; and partly because thegeneral and most useful Points thereof are so plain and clear, that they at first sightforce the Assent, and get such root in the minds of Men, that nothing can eradicatethem afterwards; let wicked Men take never so much pains to blunt the edge andstupifie themselves against the Stings of their Consciences. And in this Sense we findin Holy Scripture, that this Law is said to be written in the hearts of Men.So that having from our Childhood had a Sense hereof instill’dinto us, together with other Learning in the usual Methods ofEducation, and yet not being able to remember the punctual time when first they tookhold of our Understanding and possess’d our Minds; we can have no other opinion ofour knowledge of this Law; but that it was connate to our Beings, or born togetherand at the same time with our selves. The Case being the same with every Man inlearning his Mother Tongue.

Those Duties, which from the Law of Nature are incumbent uponMan, seem most aptly to be divided according to the Objectsabout which they are conversant. With regard to which they areranged under three principal Heads; the first of which gives usDirections how by the single Dictates of right Reason Man oughtto behave himself towards God; the second contains our Duty



towards our selves; and the third that towards other Men. But though those Preceptsof the Law Natural, which have a relation to other Men, may primarily and directly bederived from that Sociality, which we have laid down as a Foundation; yet even theDuties also of Man towards God may be * indirectly deduc’d from thence, upon thisAccount, that the strongest Obligation to mutual Duties between Man and Man arisesfrom Religion and a Fear of the Deity; so as that Man could not become a sociableCreature if he were not imbu’d with Religion; and because Reason alone can go nofarther in Religion than as it is useful to promote the common Tranquillity andSociality or reciprocal Union in this Life: For so far forth as Religion procures theSalvation of Souls, it proceeds from peculiar Divine Revelation. But the Duties a manowes to Himself arise jointly from Religion, and from the Necessity of Society. So thatno Man is so Lord of himself, but that there are many things relating to himself, whichare not to be disposed altogether according to his Will; partly because of theObligation he lies under of being a religious Adorer of the Deity, and partly that hemay keep himself an useful and beneficial Member of Society.



I.

Natural Religion, itsParts.

II.

That God is. L. N. N.l. 2. c. 4. §3.

III.

God the Creator of theWorld. L. N. N. l. 3.c. 4. §4.


Chapter Iv

Of The Duty Of Man Towards God, Or, Concerning NaturalReligion

The Duty of Man towards God, so far as can be discover’d byNatural Reason, is comprehended in these two; that we have trueNotions concerning him, or know him aright; and then that weconform all our Actions to his Will, or obey him as we ought.And hence Natural Religion consists of two sorts of Propositions,to wit, *Theoretical or Speculative, and Practical or Active.

Amongst those Notions that every Man ought to have of God, thefirst of all is, that he firmly believe his Existence, that is, thatthere is indeed some supreme and first Being, upon whom thisUniverse depends. And this has been most plainly demonstratedby learned and wise Men from the Subordination of Causes toone another, which must at last be found to have their Original in somewhat that wasbefore them all; from the necessity of having a first Mover; from the Consideration ofthis great Machin, the World, and from the like Arguments.14 Which if any Mandenies himself to be able to comprehend, he is not therefore to be excus’d for hisAtheism. For all Mankind having been perpetually, as it were, possest of thisPersuasion, that Man who undertakes to oppose it, ought not only solidly to confuteall those Arguments that are brought to prove a God, but should advance Reasons forhis own Assertion, which may be more plausible than those. And since by this Beliefof the Deity the Weal of Mankind may be supposed to have been hitherto preserv’d,he ought to shew that Atheism would better answer that End than sober Religion andthe Worship of God. Now seeing this can by no means be done, the Wickedness ofthose Men who attempt any way to eradicate this Persuasion out of the Minds of Men,is to be above all things abominated, and restrain’d by the severest Punishments.

The Second is, that God is the Creator of this Universe. For itbeing manifest from Reason, that none of these Things couldexist of themselves, it is absolutely necessary that they shouldhave some supreme Cause; which Cause is the very same thatwe call God,

And hence it follows, that those Men are cheated, who every now and then are puttingupon us Nature, forsooth, as the original Cause of all Things and Effects. For, if bythat Word they mean that Energy and Power of Acting which we find in every Thing,this is so far from being of any force to prove there is no God, that it proves him to bethe Author of Nature it self. But if by Nature they would have us understand theSupreme Cause of all Things, this is only out of a profane Nicety to avoid the receiv’dand plain Appellation of God.



IV.

God governs theWorld.

V.

God infinitely perfect.

Those also are in a great Error, who believe that any thing can be God, which is theObject of our Senses, and particularly the Stars, among the rest. For the Substance ofthese argues them all to derive their Beings from somewhat else, and not to be thefirst Things in Nature.

Nor do they think less unworthily of God, who call him the *Soul of the World. Forthe Soul of the World, let them conceive of it as they please, must signifie a Part ofthe World; and how can a Part of a Thing be the Cause of it, that is, be somethingbefore it self? But if by the Soul of the World, they mean that first and invisible Being,from which all Things receive their Vigour, Life, and Motion, they only obtrude uponus an obscure and figurative Expression for one that is plain and obvious. From hencealso it appears, that the World did not exist from all Eternity; this being contrary tothe Nature of that which has a Cause. And he that asserts, that the World is Eternal,denies that it had any Cause of its being, and consequently denies God himself.

The Third is, that Godgoverns the whole World, and particularlyMankind; which plainly appears from the admirable and constantOrder which is to be seen in this Universe; and ’tis to the samemoral Purpose whether a Man deny that Godis, or that he rulesand regards the Affairs of Men; since either of them destroy allManner of Religion. For let him be never so excellent in himself, ’tis in vain to fear orworship him, if he be altogether regardless of us, and neither will nor can do us eitherGood or Hurt.

The Fourth is, that no Attribute can belong to God, which impliesany manner of Imperfection. For it would be absurd, (He beingthe Cause and Source of all Things) for any Creature of his tothink it self able to form a notion of any Perfection, of which heis not fully possest. Nay, His Perfection infinitely surmounting the Capacity of somean a Creature, it is most reasonable to express the same in negative rather than inpositive Terms. Hence nothing is to be attributed to God that is finite or determinate;because what is finite has always somewhat that is greater than it self: Andwhatsoever is determinate, or subject to Figure and Form, must suppose Bounds andCircumscription: Neither can He be said to be distinctly and fully comprehended orconceiv’d in our Imagination, or by any Faculty of our Souls; because whatsoever wecan comprehend fully and distinctly in our Minds, must be Finite. And yet, when wepronounce God to be Infinite, we are not to think we have a full Notion of Him; for bythe word Infinite we denote nothing in the Thing it self; but only declare theImpotence of our Understandings, and we do, as it were, say, that we are not able tocomprehend the Greatness of his Essence. Hence also it is, that we cannot rightly sayof God that he has any Parts, as neither that He is All any thing; for these areAttributes of things finite; nor that he is contain’d in any Place, for that denotesLimits and Bounds; nor that He moves or rests, for both those suppose Him to be in aplace: So neither can any thing be properly attributed to God which intimates Grief, orany Passion, such as Anger, Repentance, Mercy. I say properly; because when theinspir’d Writers sometimes use such Expressions, speaking of the Almighty, they arenot to be understood in a proper Sense, but as accommodating their Language to thecommon Apprehensions and Capacities of Men; so that we are not to understand



God but One.

VI.

Internal Worship ofGod.

VII.

hereby that God receives the same Impressions from external Objects that Manreceives, but only by way of similitude, as to the Event or Effect; thus God is said tobe angry with, and to be offended at Sinners, not that such Passions or Affections canpossibly be in the Divine Nature, but because he will not suffer those who break hisLaws to go unpunish’d. Nor may we say of Him ought that denotes the Want orAbsence of any Good, as Appetite, Hope, Concupiscence, Desire of any thing; forthese imply Indigence and consequently Imperfection; it not being supposable thatone should desire, hope, or crave any thing of which he does not stand in some need.And so when Understanding, Will, Knowledge, and acts of the Senses, Seeing,Hearing, &c. are attributed to God, they are to be taken in a much more sublimeSense, than we conceive them in our selves. For the Will in us is a rational Desire;but Desire, as it is said afore, presupposes the Want or Absence of something that isagreeable and necessary. And Understanding and Sense imply some Operation uponthe Faculties of Man, wrought by exterior Objects upon the Organs of his Body andthe Powers of his Soul; which being Signs of a Power depending upon some otherThing, demonstrate it not to be most perfect.

Lastly, it is utterly repugnant to the Divine Perfection to saythere are more Gods than one; for, beside that the admirableHarmony of the World argues it to have but one Governour, God would not beinfinite, if there were more Gods of equal Power with himself, and not dependingupon Him; for it involves a Contradiction to say, There are many Infinites. Upon thewhole then, ’tis most agreeable to Reason, when we attempt to express the Attributesof God, either to make use of Words of a Negative signification, as Infinite,Incomprehensible, Immense, Eternal, i.e. which had no Beginning nor shall have End;or Superlative, as most Excellent, most Powerful, most Mighty, most Wise, &c. orIndefinite, as Good, Just, Creator, King, Lord, &c. and this in such a Sense as wewould not think our selves to express What he is, but only in some sort to declare ourAdmiration of Him, and profess our Obedience to Him; which is a token of an humbleSoul, and of a Mind paying all the Veneration it is capable of.15

The Propositions of Practical Natural Religion are partly such asconcern the Internal, and partly the External Worship of God.The Internal Worship of God consists in honouring Him. NowHonour is a high Opinion of another’s Power conjoyn’d withGoodness: And the Mind of Man is obliged, from aConsideration of this his Power and Goodness, to fill it self with all that Reverencetowards him, of which its Nature is susceptible. Hence it is, that it is our Duty to lovehim, as the Author and Bestower of all Manner of Good; to hope in him, as fromwhom only all our Happiness for the future does depend; to acquiesce in his Will, hedoing all things for the best, and giving us what is most expedient for us; to fear him,as being most powerful, and the offending whom renders us liable to the greatest Evil;Lastly, in all things most humbly to obey him, as our Creator, our Lord, and our bestand greatest Ruler.



External Worship ofGod.

VIII.

The External Worship of God is chiefly shewn in theseInstances:

1. We must render Thanks to God for all those manifold Blessings he has sobountifully bestow’d upon us.2. We must conform, as far as we possibly can, all our Actions to his Will;that is, we must obey all his Commands.3. We must Admire and Adore his infinite Greatness.4. We must Offer up to him our Prayers and Supplications, to obtain fromhim those Benefits we stand in need of, and to be delivered from those Evilswe are in fear of. Indeed our Prayers are Proofs of our Trust and Hope inHim, and our Hope is a plain Acknowledgment of the Power and Goodness ofhim in whom it is placed.5. When we find it necessary to take an Oath, we must swear by no otherName than the Name of God; and then we must most religiously observe whatwe have engaged our selves to in calling GOD to witness; and this we areindispensably obliged to, from the Consideration of God’s infiniteKnowledge and his Almighty Power.6. We must never speak of GOD but with the highest Respect and utmostReverence. Such a Behaviour is a Proof of our Fear of God; and Fear is anAcknowledgment of his Power over us, whom we dread. Hence then itfollows, that the Holy Name of GOD is not to be mention’d in our Discourseupon unnecessary and trifling Occasions, since this would be greatDisrespect; That we ought not to swear at all but upon great and solemnOccasions; for calling God to witness upon Matters of small Weight andMoment, is a great Abuse of his Holy Name. That we engage not our selvesin overnice and curious Enquiries and Disputes about the Nature of GOD,and the Methods of his Providence: This would be to magnify and exalt ourown Capacities, and vainly to imagine, that the unsearchable Nature andProvidence of God could be comprehended within the narrow Limits of ourshallow Reason.7.Whatsoever is done for the Sake of GOD, or in Obedience to his Will, oughtto be the most excellent in its Kind, and done after such a Manner, and withsuch Circumstances, as are most proper to express the profound Honour andVeneration we have for Him.8. We must serve and worship him, not only in private, but also in publick, inthe sight of Men; for to do any thing in secret only, seems to hint as if wewere ashamed to act it openly; but Worship publickly paid, not only givesTestimony of our own Devotion, but excites others by our Example to do thelike.9. And Lastly, We are to use our utmost Endeavour to observe the Laws ofNature; for as it is the greatest Affront to slight the Commands of God, so, onthe contrary, Obedience to his Laws is more acceptable than any Sacrifice;and we have proved, that the Law of Nature is the Law of God.



Eternal Salvation notacquired by NaturalReligion alone.16

IX.

Religion the firmestBond of Society.

And yet, after all, it must be confest, that the Effects of thisNatural Religion, nicely consider’d, and with regard to thepresent State of Mankind, are concluded within the Prospect ofthis Life; but that it is of no Avail towards procuring eternalSalvation.17 For Human Reason, left alone to it self, knows not that the Pravity,which is so discernable in our Faculties and Inclinations, proceeded from Man’s ownFault, and that, hereby he becomes obnoxious to the Wrath of God, and to eternalDamnation: So that with the Guidance of this only, we are altogether ignorant of theNecessity of a Saviour, and of his Office and Merit; as well as of the Promises madeby God to Mankind, and of the several other Matters thereupon depending, by whichalone, it is plain from the holy Scriptures, that everlasting Salvation is procured tomortal Men.

It may be worth the while, yet a little more distinctly to considerthe Benefits which through Religion accrue to Mankind; fromwhence it may appear, that *It is in truth the utmost and firmestBond of Human Society.18 For in the Natural Liberty, if you takeaway the Fear of a Divine Power, any Man who shall haveconfidence in his own Strength, may do what Violences he pleases to others who areweaker than himself, and will account Honesty, Modesty, and Truth but as emptyWords; nor will he be persuaded to do that which is right by any Arguments, but froma Sense of his own Inability to act the contrary. Moreover, lay aside Religion, and theInternal Bonds of Communities will be always slack and feeble; the Fear of atemporal Punishment, the Allegiance sworn to Superiours, and the Honour ofobserving the same, together with a grateful Consideration that by the Favour of thesupreme Government they are defended from the Miseries attending a State ofNature; all these, I say, will be utterly insufficient to contain unruly Men within theBounds of their Duty. For in this case that Saying would indeed have place, †He thatvalues not Death, can never be compell’d; because to those who fear not God nothingcan be more formidable than Death. He that can once bring himself to despise this,may attempt what he pleases upon those that are set over him; and to tempt him so todo, he can hardly want some Cause or Pretence; as, either to free himself of theUneasiness he seems to lie under by being subject to another’s Command, or thathimself may enjoy those Advantages which belong to him that possesses theGovernment; especially when he may easily persuade himself, that his Enterprise isjust, either because He that at present sits at the Helm of Government is guilty of Mal-Administration, or that himself thinks he could manage it by many degrees to betterpurpose. An Occasion too cannot long be wanting for such Attempts, either from thePrince’s Want of Circumspection in the care of his Person, (and indeed in such a Stateof Things * who shall guard even the Guards themselves?) or from a powerfulConspiracy, or, in time of foreign War, from a Defection to the Enemy. Beside privateMen would be very prone to wrong one another; for the Proceedings in human Courtsof Judicature being govern’d by Proofs of Matter of Fact, all those Wickednesses andVillanies which could be secretly acted and without Witnesses, if any thing were to begain’d by them, would be accounted Dexterities of Wit, in the practice of which a Manmight enjoy some Self-satisfaction. Again, no Man would be found that would doWorks of Charity or of Friendship, except with probable Expectation of Glory orProfit. From whence it would follow, that, supposing no Punishment from above, one



Man not being able to place any solid Confidence in the Troth of another, they mustevery one always live anxiously in a mutual Fear and Jealousy, lest they be cheatedor harm’d each by his Neighbour. The Governours also would have as littleInclination, as the Governed, to Actions that are brave and honourable; for those thatgovern not being obliged by any Tie of Conscience, would put all Offices, and evenJustice itself to sale; and in every thing seek their own private Profit by theOppression of their Subjects; from whom they being always fearful of a Rebellion,they must needs know, there can be no surer Means to preserve themselves, than byrendring them as heartless and as weak as possible. The Subjects also, on the otherside, standing in fear of the Violences of their Rulers, would always be seekingOpportunities to rebel, tho’ at the same time they must be mutually distrustful andfearful of each other. The same would be the Case of married Persons; upon anyslight Quarrel, they would be suspicious lest one should make away the other byPoison or some such clandestine Way; and the whole Family would be liable to thelike Danger. For it being plain, that without Religion there could be no Conscience; itwould not be easy to discover such secret Villanies; they being such as mostly arebrought to light by the incessant pricking of the Conscience, and internal Horrorsbreaking forth into outward Indications. From all which it appears, how much it is theInterest of Mankind, that all Means be used to check the spreading of Atheism in theWorld; and with what vain Folly those Men are possess’d, who think to get theReputation of being notable Politicians, by being seemingly inclin’d to Looseness andIrreligion.



I.

Man liable toObligation toHimself.

L. N. N. l. 1. c. 4.

II.

The generalObligation that everyone lies under to takecare of his Soul.

III.

Particular Duties towhich this Care of ourSoul obliges us.


Chapter V

Of The Duty Of A Man Towards Himself19

Although the Love of himself be so deeply fix’d in the Mind ofMan, as to put him always under a Sollicitous Care of Himself,and upon Endeavours by all means to procure his ownAdvantage; so as, upon Consideration hereof, ’twould seemsuperfluous to find out Laws to oblige him to the same: * yet inother Respects it is necessary, that he be bound to theObservation of some certain Rules touching Himself.For, not being born for himself alone, but being thereforefurnish’d with so many excellent Endowments, that he may setforth his Creator’s Praise, and be rendred a fit Member of Human Society; it followshence, that it is his Duty, to cultivate and improve those Gifts of his Creator which hefinds in himself, that they may answer the End of their Donor; and to contribute allthat lies in his Power to the Benefit of Human Society. Thus, though true it is, that theIgnorance of any Man is his own Shame and his own Loss; yet we accuse not theMaster of Injustice, who chastises his Scholar for Negligence in not learning thoseSciences of which he is capable.

And since Man consists of two Parts, a Soul and a Body, whereofthe first supplies the Part of a Director, the other that of anInstrument or subordinate Minister; so that our Actions are allperformed by the Guidance of the Mind, and by the Ministrationof the Body; we are hence obliged to take care of both, butespecially the former.

The Care of the Soul consists, in general, in the right Formation of the Mind andHeart; that is, not only in framing to our selves true and just Opinions concerning allthose Things to which our Duties bear any reference, and in making a true Judgmentof, and setting a right Value upon, those Objects which commonly excite ourAppetites; but also in regulating the Dispositions of our Minds; in reducing andconforming them to the Dictates of right Reason; in employing our Time and Pains inthe Prosecution of honest Arts and Sciences; and, in one word, in getting our selvespossest of all those Qualities which are necessary for us to lead an honest and asociable Life.20

Among all the Opinions then, which it highly concerns all Menfirmly to settle in their Minds, the chief are those which relate toALMIGHTY GOD, as the great Creator and Governour of theUniverse, such as are represented in the foregoing Chapter. Thefull Persuasion of these great Truths being not only the principalGround of the Whole Duty of Man to God,



1. To settle in ourselves right Opinionsof Religion. L. N. N.l. 1. c. 4. §7.

but the Foundation of all those Virtues which we are to exercisetoward our Neighbour, and the true Source of all that Quiet ofConscience and Tranquillity of Mind, which is one of thegreatest Blessings of Life. Since no sober and considering Mancan deny these Truths, we must diligently avoid and utterly rejectall those Opinions, which contain in them any thing contrariant to Principles soimportant. By which I mean not only Atheism and Epicurism, but all other Sentimentswhich are prejudicial to Human Society, or destructive of good Manners; such beingincompatible with true Religion, and overturning the very Foundation of the Moralityof Human Actions; of which kind there are many Instances.21

The first I shall mention is the Stoical Conceit of Fate or Destiny, and (which nearlyresembles it) Judicial Astrology; by which it being supposed, that all things happen inthe World by an internal and inevitable Necessity, Men must be looked upon as thesimple Instruments only of their own Actions; for which, consequently, they are nomore accountable upon this Presumption, than a Clock is answerable for the Motionof its Wheels.

Another Opinion there is very nearly allied to this, which supposes the unalterableConsequences of Causes, and of Effects; or the great Chain of Things, established bythe Creator, to stand by such an Immoveable Decree, that even God has left Himselfno Liberty of interposing in particular Cases.

Most pernicious likewise is that Conceit, which makes GOD allow a kind of Marketof Sins, so as to suffer them to be bought off with Money, to be commuted for withOfferings, with the Observance of some vain Ceremonies, or the Utterance of someset Forms of Speech, without Amendment of Life, and an honest Endeavour tobecome Good Men. To this may be joyned, the sottish Imagination of such, whofancy that Almighty GOD is delighted with such Inventions of Men, such Institutionsand Ways of Living, as are disagreeable to Human and Civil Society, as it is regulatedby the Dictates of Reason and the Laws of Nature.

All superstitious Notions, such as debase and dishonour the Divine Nature andWorship, are carefully to be avoided, as contrary to true Religion.

The same thing must be said of the Notions of those Men, who imagin that the bareExercise of Piety towards GOD in Acts of Devotion, as they are called, is sufficient,without any Regard had to Honesty of Life, or to those Duties which we are topractice towards our Neighbour. Nor is the Conceit of others less Impious, who fancy,that a Man may be able, not only to fulfil his own Duty towards GOD, but evenexceed what is required of him, and thereby transfer some of his Merits on others; sothat one Person’s Negligence in his Duty, may be supply’d from the Works ofSupererogation, that is, the Over-righteousness of another. Of the same Stamp is thatshameful Opinion of some others, that imagine, that the Wickedness of some Actionsis overlooked and excused by GOD, on the Account of the Dexterity, the Humour, orthe Gallantry of the Persons who do them; as if such Sins passed only as Jests andTrifles in the Cognisance of Heaven. No less wicked is it to believe, that those Prayerscan please GOD, by which a Man desires, that others may suffer an undeserved Evil,



IV.

2. To arrive at a trueKnowlege of ourselves. The Dutiesthat result from such aknowledge. L. N. N. l.2. c. 4. §5.

L. N. N. l. 2. c. 4. §7.

for the occasioning or promoting an Advantage to himself; or to imagine, that Menmay treat, in the worst manner they please, such as are of a different Persuasion fromthem in Religious Matters. Not to mention some other such like Opinions, whichcarry indeed the Pretence of Piety, but in reality tend to the Destruction of Religionand Morality.

When we have thus arm’d our Minds against all false Opinionsof the Divine Nature and Worship, the main Concern behind is,for a Man accurately to examine his own Nature, and to study toknow himself.22

From this Knowledge of himself, rightly pursued, a Man isbrought acquainted with his own Original; he comes to knowperfectly his Condition here, and the Part he is to bear in theWorld. Hereby he will perceive, that he does not exist of himself, but owes his Beingand Life to a Principle infinitely superior to him; that he is endowed with Faculties farmore noble than he sees enjoy’d by the Beasts about him; and farther, that he was notborn by himself, nor purely for his own Service, but that he is a Part of Human kind.From thus knowing a Man’s self he must necessarily conclude, that he lives inSubjection to Almighty GOD, that he is obliged, according to the Measure of the Giftshe hath received from his Maker, to serve and honour Him; and moreover, to behavehimself towards his Equals in such a manner, as becomes a Sociable Creature. And inas much as GOD hath bestowed on him the Light of Reason and Understanding, toguide him in the Course of his Life, it evidently follows, that he ought to make a rightUse of it: And consequently not to act at random, without End or Design, but,whatever he undertakes, to propose thereby to himself some particular End, in its selfboth possible and lawful, and to direct his own Actions suitably to that End; as also touse such other Means as he shall find proper for the compassing it. Again, fromhence it follows, that since Truth and Right are always uniform and without alteration,so a Man ought always to form the same Judgments of the same Things, and when hehath once judged truly, to be always constant in his Mind and Resolution. Farther itfollows, that a Man’s Will and Appetite ought not to get the Superiority over hisJudgment, but follow and obey it, never making resistance to its Decrees; or, whichamounts to the same thing, Men ought to form no Judgments but upon matureDeliberation, nor ever to act against their Judgments so formed.

Besides, by considering and knowing himself, a Man will rightlyapprehend his own Strength and Power: He will find that it is ofa finite nature, having certain Limits beyond which it can never extend it self; andtherefore, that there are many Things in the World which he can no ways manage orcompass, many that he can no ways hinder or resist, and other Things again notabsolutely above Human Power, but which may be prevented and intercepted by theInterposition of other superior Powers. Again, another Sort of Things there are, whichthough we cannot compass by our bare Strength, yet we may, if it be assisted andsupported by Dexterity and Address.

What seems to be most free from outward Restraint, and most within our own Poweris our Will; especially so far as it is concerned in producing and exerting Actions



V.

3. To regulate themeasure of ourDesires in proportionto the Just value ofthe things we desire.How we ought to seekfor Honour or Esteem.L. N. N. l. 2. c. 4. §9.

suitable to our Species of Being, as we are reasonable Creatures. Hence it follows,that every Man ought to make it his main Care and Concern, rightly to employ all hisFaculties and Abilities, in conformity to the Rules of right Reason. For this is theStandard by which we are to rate the Worth of every Person, and to measure hisintrinsical Goodness and Excellency.

As to other Matters which lie without us, before he enters upon the Pursuit of them, AMan should diligently examine, Whether they do not surpass his Strength? Whetherthey tend to a lawful End? and, Whether they are worth the Labour which must bespent in obtaining them? When, upon mature Deliberation, he is resolved to engage inany such Affairs, a wise Man will indeed use his best Efforts to bring his Designabout; but if he finds those Endeavours ineffectual, he will not strive against theStream, and drive on his Designs with vain Hope, but quit his Pursuit without Grief orAnger at his Disappointment. From these Considerations this further Consequencemay be drawn; That Man, as he is guided only by the Light of Reason, oughtprincipally to aspire after that Happiness in this World, which arises from the prudentGovernment of his Faculties, and from those Assistances and Supports which theDivine Providence he knows will afford him in the universal Administration of things.Hence he will not leave things to meer Hazard and Chance, while there is room forHuman Caution and Foresight. But then, since human Foresight is very weak indiscovering future things, which are so far from being under our Guidance, that theyfrequently fall out beyond our Hopes and Expectations: Hence it is plain, that weought neither too securely to trust to our present Condition, nor to spend too muchCare and Anxiety on what is to come: and for the same reason, Insolence in Prosperityand Despair in Adversity are to be both avoided, as equally dangerous and equallyabsurd.

Another necessary Improvement of our Mind and Understandingis, To be able to set a just Price on those Things which are thechief in moving our Appetites. For, from this Knowledge it is thatthe degree of Desire is to be determined, with which we mayseek after them.

Among these, that which bears the greatest sway, and appearswith most splendor, and which most forceably moves Elevatedand Noble Souls, is the Opinion of Worth and Excellency; anOpinion from whence springs what we usually call Glory orHonour: In respect to which we are to form and temper our Minds in the followingmanner.

We must use our utmost Care and Endeavour to procure and preserve that kind ofEsteem that is simply so called, that is, the Reputation of being Good and HonestMen; and if this Reputation be assaulted by the Lies and Calumnies of Wicked Men,we are to use all possible Pains to wipe them off; but if that be not in our Power, weare to comfort our selves with the Testimony of a good Conscience, and with theAssurance, that our Integrity is still known to GOD.



VI.

In what manner wemay desire Riches.

VII.

In what manner wemay desire Pleasures.L. N. N. l. 2. c. 4.§11.

As for that Esteem, which is oft-times called Intensive, or Esteem of Distinction, butmore commonly Honour or Glory, we are no otherwise to pursue it, than as itredounds from such worthy Actions as are conformable to Right Reason, andproductive of the Good of Human Society; but even then good Heed is to be taken,that hereby our Mind do not swell with Arrogance and Vain-glory. If at any time wehave no Opportunity, or want an Occasion of shewing our Worth, without being ableto procure one, we must bear this ill Fortune with Patience, since there is nothing in itthat can be charged upon our Default. To value our selves upon, and make our boastsof what is empty, vain, and trifling, is most impertinent and ridiculous; but it isabominably Wicked, as well as extremly Foolish, to aspire to Fame and to Honours byevil Arts, and by Deeds repugnant to Reason; and to desire Preheminence aboveothers, only to be able to insult over them, and to make them obnoxious to ourPleasure.

The Desire of outward Possessions, Riches, and Wealth, doesalso prevail greatly in the Minds of Men; and no wonder, sinceMen have not only need thereof for their own Support andPreservation in the World, but also often lie under anindispensible Duty to provide them for others. But then, becauseour Wants are not infinite, but lie in a very narrow Compass, and since Nature is notwanting in a plentiful Provision for the Necessities of her Sons; and lastly, since allthat we can heap together must, at our Death, fall to others; we must moderate ourDesire and our Pursuit of those Things, and govern our selves in the Use of themaccording to the just Occasions of Nature, and the modest Demands of Temperanceand Sobriety. We must do no dishonest or base Thing for the procuring them; we mustnot increase them by sordid Avarice, nor squander them away by profuse Prodigality,nor in any ways make them subservient to vicious and dishonest Purposes. Farther,since Riches are of a very perishable Nature, and may be taken from us by manyAccidents and Casualties, we must, with respect to ’em, put our Mind in so even aTemper, as not to lose it self if it should happen to lose them.

The Desire of Pleasures does as strongly excite the Minds ofMen as that of Honour or Riches: In reference to these we mustobserve, that there are Innocent Pleasures and CriminalPleasures. The latter of which must be always avoided; but it isby no means a Fault to enjoy the former, provided it be donewith moderation, and in conformity to the Rules of Temperanceand Sobriety. As there is no Fault to avoid, as much as may be, unnecessary Grief andPain, because they tend to the Destruction of the Body; so Reason, on the other side,is so far from forbidding us the Enjoyment of moderate Recreation and innocentPleasure, that it directs us to entertain our Senses with such Objects as are, in thismanner, agreeable and delightful to them, since hereby the Mind is unbent andrefresh’d, and render’d more active and vigorous. But then, in the Enjoyment of theselawful and innocent Gratifications, great Care is to be taken, that we enjoy them tosuch a Degree only, that we be not thereby weakened and enervated; that neither theVigour of the Body or Soul be thereby lessen’d; that they waste not nor consume ourWealth, when it might be better and more usefully laid out; and that they steal not ourTime from better and more necessary Employments. Lastly, This must be an



VIII.

4. We ought tosubject our Passionsto the Government ofour Reason. L. N. N.l. 2. c. 4. §21.

inviolable Rule, that no Pleasure must be purchased at so dear a Rate, as the Neglector Transgression of our Duty; nor ought any to be receiv’d that brings after it Loss,Disgrace, Sorrow, or Repentance.

Lastly, The chief Care incumbent on us, in order to improve andwell cultivate our Mind, is, to use the utmost Diligence, To gainthe Mastery over our Passions; to maintain the Sovereignty ofour Reason over the Motions and Affections of our Minds; thegreatest Part of which, if they gain the Ascendant, and growmasterless, do not only impair the Health of the Body, and theVigour of the Soul, but cast such a Cloud on the Judgment andUnderstanding, as to wrest them violently from the Ways of Reason, and of Duty. Sothat the natural Principle of Prudence and Probity amongst Men, may be justly said tobe founded in calming and cooling the Passions. But let us briefly speak of them inparticular.

JOY is in it self a Passion most agreeable to Nature; but strict Care is to be taken, thatit break not out on improper Occasions, that it shew not itself in Matters vain ortrifling, base or indecent.

SORROW, like a Canker, wastes both the Body and Soul: it is therefore as much aspossible to be remov’d and expell’d, nor ever to be admitted, even moderately, unlesswhen by the Ties of Humanity, we are obliged to express our Concern, or Pity at theMisfortunes, or at the Deaths of others; and as it is requisite to the great Duty ofRepentance.

LOVE is a Passion of a benevolent and friendly Nature to Mankind; but yet it is to beso wisely managed and moderated, that it be not fix’d upon an unworthy Object; thatwe take not unlawful Ways to satisfy its Demands; that it keep within due Bounds, soas not to degenerate into Disease and Disquiet, if the beloved Object is not to beobtained.

HATRED is a Passion pernicious, as well to the Person who employs it, as to thoseagainst whom it is employ’d; it is therefore diligently to be quenched and stifled, lestit betray us to Injuries, and Breach of Duty against our Neighbours. And when anyPersons do really deserve our Aversion, we must even then take care not, on theirAccount, to create Uneasiness and Disquiet to our selves.

ENVY is a most deform’d Monster, sometimes producing ill Effects in others, butalways in the Envious Person, who, like Iron cankered with Rust, not only defiles, butdestroys himself continually.

HOPE, although in it self a Passion mild, easy, and gentle, yet is it also to be broughtunder due Regulation. We must be careful not to direct it to Things vain or uncertain;nor, by placing it on Objects out of our Reach, and beyond our Power, make it tire itself to no purpose.



IX.

How far the Study ofArts and Sciences isnecessary. L. N. N. l.2. c. 4. §13.

FEAR, as it is a dangerous Enemy to Men’s Minds, so is it a Passion altogetheruseless and unprofitable. It is indeed by some esteemed the Parent of good Caution,and consequently, the Occasion of Safety; but this good Caution may owe it self to amuch better Principle, it may arise without the Assistance of Fear, from a waryCircumspection, and a Prudence alike untouched with Anxiety or with Consternation.

ANGER is the most violent, as well as the most destructive of all the Passions, and istherefore to be resisted with our utmost Strength and Endeavour. It is so far fromexciting Men’s Valour, and confirming their Constancy in Dangers, as some alledge,that it has a quite contrary Effect; for it is a Degree of Madness, it renders Men blindand desperate, and runs them headlong into their own Ruin.

DESIRE OF REVENGE is nearly related to Anger; which, when it exceeds aModerate Defence of our selves and Concerns, and a just Assertion of our Rightsagainst the Invaders of them, turns, beyond Dispute, into a Vice.

In such Duties as we have reckoned up doth that Culture of theMind chiefly consist, which all Men are indispensably obliged tolook after: But there is still behind a more peculiar Culture andImprovement of the Mind, consisting in the various Knowledgeof Things, and the Study of Arts and Sciences. This Knowledge,it is true, cannot be said to be absolutely necessary to theDischarge of our Duty in general, but yet must by all be allowed to be exceedinglyuseful to supply the Necessities and promote the Conveniencies of Human Life, andtherefore by every one to be followed, according as his own Capacity and Occasionwill permit.

No one disputes the Usefulness of those Arts, which supply the Necessities, orcontribute to the Convenience of Human Life.

As to Sciences; some may be stiled Useful; others Curious, and others again Vain.

In the Number of useful Sciences, I reckon Logick, which teaches to reason justly,closely, and methodically; those Sciences which have any respect to Morality,Physick, and all such Parts of Mathematicks as lay the Foundation of those practicalArts, which serve to procure and augment the Necessaries or Conveniencies of Life.

By Curious, or Elegant Sciences, I understand such as are not indeed of so necessaryUse, as to render the Life of Man less sociable, or less convenient upon the Want ofthem; but yet such as serve to gratify and please an innocent Curiosity, to polish andadorn our Wit, and to embellish and render our Understanding more compleat: SuchSciences are, Natural and Experimental Philosophy, the more fine and subtile Parts ofMathematicks, History, Criticism, Languages, Poetry, Oratory, and the like.

By Vain Sciences, I mean such as are made up of false and erroneous Notions, or areemploy’d about frivolous, trifling, and unprofitable Speculations; such are theAmusements of old Philosophers, the Dreams of Astrologers, and the Subtilties of theSchool-men.



X.

Wherein consists theCare of the Body.

XI.

Whether a Man hasthe Power of his ownLife.

To employ Labour and Pains in these last Sort of Studies is highly unworthy of anyMan, and an unpardonable Waste of his Time. But whosoever would not deserve to beaccounted an useless Lump on Earth, a Trouble to himself and a Burthen to others,ought, as far as he has Means and Opportunity, to employ himself in some of theaforemention’d Arts and Sciences. Every one at least ought, in a proper Time, to takeupon himself some honest and useful Employment, agreeable to his naturalInclinations, suitable to the Abilities of his Body and Mind, Extraction, and Wealth; oraccording as the just Authority of his Parents, the Commands of his Superiours, or theOccasion and Necessity of his own private Circumstances shall determine.23

Altho’ the Care of our Soul, which we have been explaining, isthe most difficult, as well as the most necessary Part of ourCharge in this Life, yet ought we by no means to neglect theCare of our Body; these two constituent Parts of us being sostrictly united and ally’d to each other, that no Injury or Hurt cancome to the one, but the other must likewise bear its Part in the Suffering.

We must therefore, as far as possible, continue and increase the natural Strength andPowers of our Bodies, by convenient Food and proper Exercise; not ruining them byany Intemperate Excess in Eating or Drinking, nor wasting and consuming them byunnecessary or immoderate Labours, or by any other Abuse or Misapplication of ourAbilities. And upon this Account, Gluttony, Drunkenness, the immoderate Use ofWomen, and the like, are to be avoided: And besides, since unbridled and exorbitantPassions, not only give frequent Occasion to disturb Human Society, but are veryhurtful even to the Person himself; we ought to take care with our utmost to quellthem, and subject them to Reason. And because many Dangers may be escap’d, if weencounter ’em with Courage, we are to cast off all Effeminacy of the Mind, and to puton Resolution against all the terrible Appearances that any Event may set before us.

And yet, because no Man could give himself Life, but it must beaccounted as the bounteous Favour of God, it appears, that Manis by no means vested with such a Power over his own Life, asthat he may put an End to it when he pleases; but he ought totarry, till he is call’d off by Him who placed him in this Station.Indeed, since Men both can and ought to be serviceable to oneanother, and since there are some Sorts of Labour, or an Overstraining in any, whichmay so waste the Strength of a Man, that old Age and Death may come on muchsooner than if he had led an easy and painless Life; there is no doubt but that a Manmay, without any Contravention to this Law, chuse that Way of living which maywith some probability make his Life the shorter, that so he may become more usefulto Mankind. And whereas sometimes the Lives of many will be lost, except someNumber of Men expose themselves to a Probability of losing their own on theirbehalf; in this Case the lawful Governour has Power to lay an Injunction on anyprivate Man under the most grievous Penalties, not to decline by Flight such Dangerof losing his Life. Nay farther, he may of his own Accord provoke such Danger,provided there are not Reasons more forcible for the contrary; and by thusAdventuring he has hopes to save the Lives of others, and those others are such as areworthy so dear a Purchase. For it would be silly for any Man to engage his Life



XII.

Self-Defencemoderated.

XIII.

We may repel forceby force, even so faras to kill an unjustAggressor. L. N. N. l.2. c. 5. §2.

together with another to no purpose; or for a Person of Value to die for thePreservation of a paltry Rascal. But for any other Cases, there seems nothing to berequired by the Law of Nature, by which he should be persuaded to prefer anotherMan’s Life before his own, but that all things rightly compared, every Man is allowedto be most dear to himself. And indeed all those who voluntarily put an end to theirown Lives, either as tir’d with the many Troubles which usually accompany thisMortal State; or from an Abhorrence of Indignities and Evils which yet would notrender them scandalous to Human Society; or thro’ Fear, or Pains, or Torment, byenduring which with Fortitude, they might become useful Examples to others; or outof a vain Ostentation of their Fidelity and Bravery; All these, I say, are to be certainlyreputed Sinners against the Law of Nature.

But whereas it often happens that this Self-Preservation, whichthe tenderest Passion and exactest Reason thus recommends toMankind, does seem to interfere with our Precepts concerningSociety, then when our own Safety is brought into Jeopardy byanother, so far that either we must perish, or submit to some verygrievous Mischief, or else we must repel the Aggressor by force and by doing himHarm; Therefore we are now to deliver, With what Moderation the Defence of ourselves is to be tempered. This Defence of our selves then will be such as is, eitherwithout any Harm to him from whom we apprehend the Mischief, by rendring anyInvasion of us formidable to him and full of Danger; or else by hurting or destroyinghim. Of the former way, [whether (in private Men) by keeping off the Assailant, or byFlight, &c.] there can be no Doubt but that ’tis lawful and altogether blameless.

But the latter may admit of Scruple, because Mankind may seemto have an equal Loss, if the Aggressor be killed, or if I lose myLife; and because one in the same Station with my self will bedestroyed, with whom it was my Duty to have lived in CivilSociety: Beside, that a forcible Defence may be the Occasion ofgreater Outrages, than if I should betake my self to flight, orpatiently yield my Body to the Invader. But all these are by nomeans of such Weight as to render this Sort of Defence unlawful. For when I amdealing fairly and friendly with another, it is requisite that he shew himself ready todo the like, or else he is not a fit Subject of such good Offices from me. And becausethe End of the Law of Society is the Good of Mankind, therefore the Sense thereof isto be taken, so as effectually to preserve the Welfare of every Individual or particularMan. So that if another Man make an Attempt upon my Life, there is no Law thatcommands me to forgoe my own Safety, that so he may practise his Malice withImpunity: And he that in such case is hurt or slain, must impute his Mischief to hisown Wickedness, which set me under a Necessity of doing what I did. Indeedotherwise, whatsoever Good we enjoy either from the Bounty of Nature, or the Helpof our own Industry, had been granted to us in vain, if we were not at liberty tooppose the Violences of Ruffians, who would wrongfully ravish all from us; andhonest Men would be but a ready Prey for Villains, if they were not allowed to makeuse of Force in defence of themselves against the others Insults. * Upon the wholethen, it would tend to the Destruction of Mankind, if Self Defence even with Forcewere prohibited to us.



XIV.

Extremities last to beused. L. N. N. l. 2. c.5. §3.

XV.

Self-Defence how farjustifiable in asupposed state ofNatural Liberty.

XVI.

How the Right ofSelf-defence islimited in a State ofCivil Society. L. N.N. l. 2. c. 5. §4.

XVII.

Of the Time when ina State of Nature Selfdefence may beallowable.

Not however that hence it follows, that as soon as any Injury isthreatned us, we may presently have recourse to Extremities; butwe must first try the more harmless Remedies; for instance, wemust endeavour to keep out the Invader by cutting off his Accessto us; to withdraw into strong Places; and to admonish him todesist from his outragious Fury. And it is also the Duty of aprudent Man to put up a slight Wrong, if it may conveniently be done, and to remitsomewhat of his Right, rather than, by an unseasonable Opposition of the Violence, toexpose himself to a greater Danger; especially if that Thing or Concern of ours uponwhich the Attempt is made, be such as may easily be made amends for or repaired. †

But in Cases where by these or the like means I cannot secure my self, in order to it Iam at liberty to have recourse even to Extremities.

But that we may clearly judge, whether a Man contains himselfwithin the Bounds of an unblameable Defence of himself, it isfirst to be examined, whether the Person be one who is in a Stateof Natural Liberty or subject to no Man, or one who isobnoxious24 to some Civil Power. In the first Case, if anothershall offer Violence to me, and cannot be brought to change hismalicious Mind and live quietly, I may repel him even by killing him. And this notonly when he shall attempt upon my Life, but if he endeavour only to wound or hurtme, or but to take away from me my Goods, without meddling with my Body. For Ihave no Assurance but from these lesser Injuries he may proceed to greater; and hethat has once professed himself my Enemy (which he doth whilst he injures mewithout Shew of Repentance) gives me, as far as ’tis in his Power to give, a fullLiberty of proceeding against him, and resisting him in such manner as I shall findmost necessary for my own Safety. And indeed the Sociality necessary to Human Lifewould become unpracticable, if a Man may not make use even of Extremities againsthim who shall irreclaimably persist in the Commission tho’ but of meaner Wrongs.For at that rate the most modest Persons would be the continual Laughing-stock of thevilest25 Rakehels.26

But in Civil Society, those who are Subjects to the Civil Power,may then only use Violence in the Defence of themselves, whenthe Time and Place will not admit of any Application to theMagistrate for his Assistance in repelling such Injuries by whicha Man’s Life may be hazarded, or some other most valuableGood which can never be repaired, may be manifestlyendangered.

As for the time when Men may put in practice their just Right ofSelf-defence, it may be learnt from the following Rules.

Altho’ every one, under that Independence in which all Men aresupposed to be in a State of Nature, may and ought to presume,that all Men are inclined to perform towards him all those Dutieswhich the Law of Nature directs, until he has evident Proof to thecontrary: Nevertheless, since Men have natural Inclinations to that which is ill, no



one ought to rely so securely on the Integrity of another, as to neglect taking allnecessary Precautions to render himself secure, and placed, as far as may be, out ofthe Reach of other Men’s ill Designs. It is but common Prudence to stop up allAvenues against those from whom we apprehend Hostilities, to be provided withserviceable Arms, to raise Troops, to get Succour and Assistance, in case of need, byAlliances and Confederacies, to have a watchful Eye over the Actions and Behaviourof those whom we have reason to apprehend to be our Enemies; and, in a word, to useall other Precautions of this Nature, which appear necessary to prevent our beingsurprized or found unprovided. The Jealousy and Suspicion which we ought to haveof each other, from our Knowledge of the Pravity of Human Nature, will justifie ouracting thus far; but then it must stop here: it must not put us upon using Violence toour Neighbours, under pretence of disabling them from injuring us, and of preventingtheir making a mischievous Use of that superior Power we see them have; especiallyif we find that this Increase of Power in them, and their Superiority over us, was theProduct of their innocent Industry, or the Gift of Providence, and not the Result ofInjury and Oppression.

* Nay, if our Neighbour, whom we see powerful enough to hurt us, should shew anInclination to use that Power mischievously, by actually injuring others, yet shall notthis justifie our Assaulting him by way of prevention, till we have good Evidence, thathe designs us also Mischief; unless we are under some prior Engagement or Alliance,to support the Persons we see thus injuriously attacked by a superior Power. In thisCase we may with greater Vigour oppose the Invader, and take the Part of our injuredAlly; since we have very good Reason to apprehend, that when by his superior Powerhe has oppressed him, he will apply the same Force against us; and that the firstConquest he makes is to be the Instrument of another that he intends.

But when we have evident Proof that another does actually intend, and has takenproper Measures to do us an Injury, altho’ he has not openly declared such hisIntention; then we may fairly put our selves on our Defence, and anticipate theAggressor before he compleats the Preparations he is making to do us the designedMischief: Provided notwithstanding we have endeavoured, by friendly Advice, tomove him to lay aside his ill Purposes so long, that there remains no Hopes of hisbeing prevailed upon to do so by fair and gentle Means: In using which friendlyAdvice and gentle Means, care must be taken, that it be not done when it may prove aPrejudice and a Disadvantage to our own Affairs. He who first forms the Design to doan injurious Act, and first makes Preparation to bring it about, is to be accounted theAggressor; altho’ it may perhaps so fall out, that the other using greater Diligence,may prevent him, and so commit the first open Acts of Hostility. It is not absolutelynecessary to a justifiable Self-defence, that I receive the first Stroke, or that I onlyward off and avoid the Blows that are aimed at me.27

But farther: In a State of Nature of which we are speaking, a Man has not only a Rightto repel a present Danger with which he is menaced, but also, after having securedhimself from the Mischief intended him, he may pursue his Success against theAggressor, till he has made him give him satisfactory Security of his peaceableBehaviour for the time to come. Concerning which Caution and Security, thefollowing Rule may be usefully observed: If a Man having injured me, shall presently



XVIII.

When and how far aMan may defendhimself with arm’dforce in a State ofCivil Society.

Of the Time when ina State of CivilSociety Self-defencemay be allowable.

XIX.

Whether a Man mayuse his Right of Self-

after, repenting of what he had done, come voluntarily and ask my pardon, and offerReparation of the Damage; I am then obliged to be reconciled to him, withoutrequiring of him any farther Security than his Faith and Promise to live hereafter inPeace and Quietness with me. For when of his own accord any Person takes suchmeasures, it is a satisfactory Evidence, that he has altered his Mind, and a sufficientArgument of his firm Resolution to offer me no Wrong for the future. But if a Manhaving injured me, never thinks of asking Pardon, or of shewing his Concern for theInjuries he has done me, till he is no longer in Condition to do them, and till hisStrength fails him in prosecuting his Violences; such an one is not safely to be trustedon his bare Promises, his Word alone being not a sufficient Warrant of the Sincerityof his Protestations. In such Case, in order to our farther Security, we must either cutoff from him all Power of doing Mischief, or else lay upon him some Obligation ofgreater Weight and Force than his meer Promise, sufficient to hinder him fromappearing ever after formidable to us.

But among Men who live in a Community,28 the Liberties forSelf-defence ought not to be near so large. For here, tho’ I mayknow for certain, that another Man has armed himself in order toset upon me, or has openly threatned to do me a Mischief; thiswill by no Means bear me out in assaulting him; but he is to beinformed against before the Civil Magistrate, who is to requireSecurity for his good Behaviour. The Use of Extremities inrepelling the Force being then only justifiable, when I am already set upon, andreduced to such Streights, that I have no Opportunity to require the Protection of theMagistrate, or the Help of my Neighbours; and even then I am not to make use ofViolence, that by the Slaughter of my Adversary I may revenge the Injury, but onlybecause without it my own Life cannot be out of Danger.

Now the Instant of Time, when any Man may with Impunitydestroy another in his own Defence, is, when the Aggressor,being furnished with Weapons for the Purpose, and shewingplainly a Design upon my Life, is got into a Place where he isvery capable of doing me a Mischief, allowing me some time, inwhich it may be necessary to prevent rather than be prevented; although in forohumano a little Exceeding be not much minded in regard of the great Disturbancesuch a Danger must be thought to raise in the Spirit of Man. And the Space of Time inwhich a Man may use Force in his own Defence, is so long as till the Assailant iseither repulsed, or has with-drawn of his own accord, (whether in that Momentrepenting of his wicked Design, or for that he sees he is like to miss of his Aim) sothat for the present he cannot hurt us any more, and we have an Opportunity ofretiring into a Place of Safety. * For as for Revenge of the Wrong done, and Cautionfor future Security, that belongs to the Care of the Civil Magistrate, and is to be doneonly by his Authority.

Farthermore,29 both in a State of Nature, and in a Civil State, itis lawful for every Man to defend himself, if the Precautionsbefore-mentioned be taken against him who attempts to takeaway his Life; whether it be designedly, and with a malicious



defence against onethat assaults him bymistake. L. N. N. l. 2.c. 5. §5.

XX.

How the most justSelf-defence ought tobe managed: and ofDuels.

XXI.

Defence of Members.L. N. N. l. 2. c. 5.§10.

XXII.

Defence of Chastity.L. N. N. l. 2. c. 5.§11.

Intention, or without any particular Design against the Partyassaulted: As suppose a Mad-man, or a Lunatick, or one thatmistakes me for some other Person who is his Enemy, shouldmake an Attempt on my Life, I may justifiably use my Right ofSelf-Defence; for the Person from whom the Attempt comes,whereby my Life is hazarded, hath no Right to attack me, and I am by no meansobliged to suffer Death unnecessarily; on which account it is altogether unreasonablethat I should prefer his Safety to my own.

Nevertheless though true it is, that we ought not to take awayanother Man’s Life, when it is possible for us after a moreconvenient way to avoid the Danger we are in; yet inconsideration of that great Perturbation of Mind, which is wontto be occasion’d upon the Appearance of imminent Mischief, it isnot usual to be over-rigorous in the Examination of theseMatters; for it is not likely that a Man trembling under the Apprehension of Danger,should be able to find out so exactly all those Ways of escaping, which to one whosedately considers the Case may be plain enough. Hence, though it is Rashness for meto come out of a safe Hold to him who shall challenge me; yet, if another shall setupon me in an open Place, I am not streight obliged to betake my self to Flight, exceptthere be at hand such a Place of Refuge as I may withdraw into without Peril: Neitheram I always bound to retire; because then I turn my defenceless Back, and there maybe hazard of falling; beside, that having once lost my Posture, I can hardly recover itagain. But as the Plea of Self-defence is allow’d to that Person who shall thusencounter Danger, when he is going about his lawful Business, whereas if he had staidat Home he had been safe enough; so it is denied to him who being challenged to aDuel, shall by appearing set himself in that Condition, and except he kill hisAdversary, himself must be slain. * For the Laws having forbidden his venturing intosuch Danger, any Excuse on account thereof is not to be regarded.

What may be done for the Defence of Life may also for theMembers;30 so as that he shall be acquitted for an honest Manwho shall kill a Ruffian, that perhaps had no farther Intentionthan to maim him, or give him some grievous Wound: For allMankind does naturally abhor to be maimed or wounded; and thecutting off any, especially of the more noble Members, is oftennot of much less value than Life itself; beside, we are not sure beforehand, whetherupon such wounding or maiming Death may not follow; and to endure this is a Sort ofPatience that surpasses the ordinary Constancy of a Man, † to which no man isregularly obliged by the Laws, only to gratifie the outragious Humour of a Rogue.

Moreover, what is lawfully to be done for Preservation of Life,‡is adjudged to be so for Chastity: Since there cannot be a morehorrid Abuse offered to an honest Woman, than to force her outof that which being kept undefiled is esteemed the greatest Gloryof their Sex; and to put upon her a Necessity of raising anOffspring to her Enemy out of her own Blood.



XXIII.

Defence of Goods orEstate. L. N. N. l. 2. c.5. §16.

XXIV.

Self Defence in himthat first injur’d. L. N.N. l. 2. c. 6. §19.

XXV.

Self Preservation inCases of Necessity. L.N. N. l. 2. c. 6.

XXVI.

As for Defence of Goods or Estate, this may, among those whoare in a State of Natural Liberty, go as far as the Slaughter of theInvader, * provided what is in Controversie be not a Thingcontemptible. For without Things necessary we cannot keep ourselves alive; and he equally declares himself my Enemy, whowrongfully seizes my Estate, as he that attempts upon my Life.But in Communities, where what is ravished from us may, with the Assistance of theCivil Authority, be recovered, this is not regularly allowed; unless in such case whenhe that comes to take away what we have, cannot be brought to Justice: On whichaccount it is, that we may lawfully kill Highwaymen and Night-robbers.

And thus much for Self-Defence in those who withoutProvocation are unjustly invaded by others: But for him who hasfirst done an Injury to another, he can only then rightly defendhimself with Force, and hurt the other again, when havingrepented of what he has done, he has offered Reparation of theWrong and Security for the future; and yet he who was firstinjured, shall, out of ill Nature, refuse the same, and endeavour to revenge himself byViolence; [shewing hereby that he seeks not so much Reparation and Right tohimself, as Mischief to the other.]

Lastly, Self-Preservation is of so much regard, that, if it cannototherwise be had, in many Cases it exempts us from ourObedience to the standing Laws; and on this Score it is, thatNecessity is said to have no Law. For seeing Man is naturallyinspired with such an earnest Desire to preserve himself, it canhardly be presumed that there is any Obligation laid upon him, towhich he is to sacrifice his own Safety. For tho’ not only God, but the CivilMagistrate, when the Necessity of Affairs requires it, may lay upon us so strict anInjunction, that we ought rather to die than vary a Little from it; yet the generalObligation of Laws is not held to be so rigorous. For the Legislators, or those whofirst introduced Rules for Mankind to act by, making it their Design to promote theSafety and common Good of Men, must regularly be supposed to have had beforetheir Eyes the Condition of Human Nature, and to have considered how impossible itis for a Man not to shun and keep off all Things that tend to his own Destruction.Hence those Laws especially, called Positive, and all Human Institutions are judged toexcept Cases of Necessity; or, not to oblige, when the Observation of them must beaccompanied with some Evil which is destructive to Human Nature, or not tolerableto the ordinary Constancy of Men; unless it be expressly so ordered, or the Nature ofthe Thing requires, that even that also must be undergone. Not that Necessity justifiesthe Breach of a Law and Commission of Sin; but it is presumed, from the favourableIntention of the Legislators, and the Consideration of Man’s Nature, that Cases ofNecessity are not included in the general Words of a Law. This will be plain by anInstance or two.



Cutting off Members.L. N. N. l. 2. c. 6. §3.

XXVII.

One lost to savemany.

XXVIII.

One hastens the Deathof another to savehimself. L. N. N. l. 2.c. 6. §4.

XXIX.

Another destroyed orhurt to the same end.

XXX.

I.Though otherwise Man have no such Power over his ownMembers, as that he may lose or maim any of them at hispleasure; yet he is justifiable in cutting off a gangren’d Limb, inorder to save the whole Body; or to preserve those Parts which are sound; or lest theother Members be rendred useless by a dead and cumbersome Piece of Flesh.

II.If in a Shipwrack more Men leap into the Boat than it iscapable of carrying, and no one has more Right than another toit; they may draw Lots who shall be cast overboard; and if anyMan shall refuse to take his chance, he may be thrown overwithout any more ado, as one that seeks the Destruction of all.

III.Iftwo happen into imminent Danger of their Lives, where bothmust perish; one may, as he sees good, hasten the Death of theother, that he may save himself. For instance, If I, who am askilful Swimmer, should fall into some deep Water with anotherwho could not swim at all, and he clings about me; I not beingstrong enough to carry him off and my self too, I may put him offwith force, that I may not be drowned together with him; tho’ I might for a little whilebe able to keep him up. So in a Shipwrack, if I have got a Plank which will not holdtwo, and another shall endeavour to get upon it, which if he does, we are both like tobe drowned, I may keep him off with what violence I please. And so if two be pursuedby an Enemy meaning to kill them, one may, by shutting a Gate or drawing a Bridgeafter him, secure himself, and leave the other in great Probability of losing his Life,supposing it not to be possible to save both.

IV.Cases also of Necessity may happen, where one mayindirectly put another in Danger of Death, or some greatMischief, when at the same time he means no harm to thePerson; but only, for his own Preservation, he is forced uponsome Action which probably may do the other a Damage; alwayssupposing that he had rather have chosen any other Way, if he could have found it,and that he make that Damage as little as he can. Thus, if a stronger Man than Ipursues me to take away my Life, and one meets me in a narrow Way thro’ which Imust flee, if, upon my Request, he will not stand out of the Way, or he has not time orroom so to do, I may throw him down and go over him, tho’ it be very likely that bythe Fall he will be very much hurt; except he should be one who has such peculiarRelation to me, [suppose my Parent, King, &c.] that I ought for his Sake rather tosurrender my self to the Danger. And if he who is in the Way cannot, upon myspeaking to him, get out of the Way, suppose being lame or a Child, I shall be excusedwho try to leap over him, rather than to expose my self to my Enemy by delaying. Butif any one shall, out of Wantonness or cross Humour, hinder me or deny to give methe Liberty of escaping, I may immediately by any Violence throw him down, or puthim out of my Way. And those who in these Cases get any Harm, are to look upon itnot as a Fault in the Person that did it, but as an unavoidable Misfortune.



Case of extremeWant. L. N. N. l. 2. c.6. §5.

XXXI.

Destroying otherMen’s Goods to saveour own. L. N. N. l. 2.c. 6. §8.

V.If a Man, not through his own Fault, happen to be in extremeWant of Victuals and Cloaths necessary to preserve him from theCold, and cannot procure them from those who are wealthy andhave great Store, either by Intreaties, or by offering their Value,or by proposing to do Work equivalent; he may, without being chargeable with Theftor Rapine, furnish his Necessities out of their Abundance, either by force or secretly,especially if he do so with a Design to pay the Price, as soon as he shall have anOpportunity. For it is the Duty of the opulent Person to succour another who is insuch a needy Condition. And tho’ regularly what depends upon Courtesie ought by nomeans to be extorted by Force, yet the Extreme Necessity alters the Case, and makesthese Things as claimable, as if they were absolutely due by a formal Obligation. Butit is first incumbent upon the Necessitous Person to try all Ways to supply his Wantswith the Consent of the Owner, and he is to take care that the Owner be not therebyreduced to the same Extremity, nor in a little time like to be so; and that Restitution bemade; * especially if the Estate of the other be such as that he cannot well bear theLoss.

VI.Lastly, the Necessity of our own Affairs seems sometimes tojustifie our destroying the Goods of other Men;1. Provided still,that we do not bring such Necessity upon our selves by our ownMiscarriage:2. That there cannot be any better Way found: 3.That we cast not away that of our Neighbours which is of greaterValue, in order to save our own which is of less:4. That we beready to pay the Price, if the Goods would not otherwise have been destroyed, or tobear our share in the Damage done, if the Case were so that his must have perishedtogether with ours, but now by the Loss of them ours are preserved. And this sort ofEquity is generally found in the Law-Merchant.31 Thus in case of Fire, I may pulldown or blow up my Neighbour’s House, but then those whose Houses are by thismeans saved, ought to make good the Damage proportionably.



I.

Reciprocal Duties oftwo Sorts.

II.

No wrong to be done.L. N. N. l. 3. c. 1.

III.

So to do a Crime.

IV.

Reparation of Wronga necessaryConsequence fromthence.


Chapter Vi

Of The Duty Of One Man To Another, And First Of Doing NoInjury To Any Man

We come now to those Duties which are to be practis’d by oneMan towards another. Some of these proceed from that commonObligation which it hath pleas’d the Creator to lay upon all Menin general; others take their Original from some certain HumanInstitutions, or some peculiar,*adventitious or accidental State ofMen. The first of these are always to be practis’d by every Man towards all Men; thelatter obtain only among those who are in such peculiar Condition or State.32 Hencethose may be called Absolute, and these Conditional Duties.

Among those Duties we account Absolute, or those of every Mantowards every Man, this has the first Place, * that one do noWrong to the other; and this is the amplest Duty of all,comprehending all Men as such; and it is at the same time themost easy, as consisting only in an Omission of acting, unlessnow and then when unreasonable Desires and Lusts are to be curb’d. It is also themost necessary, because without it Human Society cannot be preserv’d. For I can livequietly with him that does me no Good, or with whom I have no manner ofCorrespondence, provided he doth me no Harm. Nay this is all we desire from thegreatest Part of Mankind; the doing mutually good Offices lying but among a few.But I can by no means live peaceably with him that wrongs me; Nature havinginstilled into every Man such a tender Love of himself and what is his own, that hecannot but by all possible means repel those Men who shall make any Attempt uponone or t’other.

By this Duty are fenced not only what we have by the Bounty ofNature; such as our Laws, Bodies, Limbs, Chastity, Liberty; butwhatsoever by any Human Institution or Compact becomes ourProperty; so as by this it is forbidden to take away, spoil,damage, or withdraw, in whole or in part, from our Use, whatsoever by a lawful Titlewe are possess’d of. Whence all those Actions are hereby made Crimes, by which anyWrong is done to others, as Murther, Wounding, Striking, Rapine, Theft, Fraud,Violence, whether practis’d directly or indirectly, mediately or immediately, and thelike.

Farther, hence it follows, That if any Harm or Damage be doneto another, he who is truly chargeable as Author of the Wrong,ought, as far as in him lies, to make Reparation: For otherwisethe Precept would be to no purpose, That no Man shall be hurtnor receive damage; if when he has actually sustain’d a Mischief,he must put it up quietly, and he who did the Injury shall enjoy



V.

Damage how to beaccounted. L. N. N. l.3. c. 1. §3.

VI.

Damage inexpectations.

VII.

Damage mediately orimmediately done. L.N. N. l. 3. c. 1. §4.

VIII

securely the Fruit of his Violence without Reparation. And setting aside this Necessityof Restitution, the Pravity of Man’s Nature is such, that they would never forbearinjuring one another, and it would be very hard for him who has suffered Wrong, tocompose his Mind so as to live peaceably with the other, till Reparation were made.

Tho’ the Word Damage may seem properly to belong to Loss inGoods, yet we take it here in the large Sense, that it may signifieall Manner of Harm, spoiling, diminishing, or taking away whatis already ours, or intercepting that which by an absolute Rightwe ought to have, whether it be bestowed upon us by Nature, orgiven us by Man and Human Laws; or lastly, the Omission orDenial of paying what by a perfect Obligation is due to us. But if such Payment onlybe stopt, as was not due by any perfect Obligation, it is not looked upon as a Damagethat ought to be made good: For it would be unmeet to account it a Wrong suffered if Ireceive not such Stipends; and unreasonable for me to demand as my Right, what Icannot expect from another but under the name of a Free Gift, and which I can by nomeans call my own, till after I have received it.

Under the Head of Damage liable to Reparation, we must alsocomprise not only a Mischief, Loss or Interception of what isours or due to us; but also such Profits as do naturally accruefrom the Thing, or have already accrued, or may fairly beexpected, if it was the Right of the Owner to receive them;allowing still the Expenses necessary for gathering in such Profits. Now the Value ofProfits, thus in Expectation only, is to be high or low, according as they are certain oruncertain, and will be sooner or later received. And lastly, that also is to be calledDamage, which upon a Hurt given, does of Natural Necessity follow thereon.

One Man may damnifie33 another not only immediately or byhimself, but also by others: And it may happen that a Damageimmediately done by one Man may be chargeable upon another,because he contributed somewhat to the Action, either by doingwhat he ought not, or not doing what he ought to have done.Sometimes among several Persons who concurred to the sameFact one is to be accounted the Principal, others but Accessories; sometimes they mayall be equally Parties. Concerning whom it is to be observed, that they are so farobliged to repair the Wrong as they were indeed the Causes thereof, and by so muchas they contributed to doing All or Part of the Damage. But where any one did notactually assist in the Trespass committed; nor was antecedently a Cause of its beingdone, nor had any Advantage by it; there, though upon Occasion of the Injury done,he may be blame worthy, yet he cannot be any ways obliged to Restitution: And ofthis Sort are such as rejoyce at their Neighbour’s Misfortunes, such as commend theCommission of Outrages, or are ready to excuse them, who wish or favour thePractice of them, or who flatter the Actors therein.



Damage done bymany. L. N. N. l. 3. c.1. §5.

IX.

Damage byNegligence. L. N. N.l. 3. c. 1. §6.

X.

Damage by Chance.

XI.

Damage by a Vassal.

XII.

Where many have joined in an Action from whence Damage hascome, he in the first place shall be chargeable with Reparation,by whose Command or powerful Influence the others were putupon the Action; and he who immediately perpetrates the Thing,to which he could not decline his helping Hand, shall be esteemed but only as theInstrument. He who without any constraint concerned himself in the Enterprize shallbe chiefly liable, and then the rest who assisted in it. But this so, as that if Restitutionbe made by the former, then the latter are cleared, (which in Penal Cases isotherwise.) If many in Combination have committed an Injury, all are obliged for eachone single, and each one single is obliged for all; so as that if all are seized, they musteach pay their Shares to make good the Loss; and if all escape but one, he shall beobliged to pay for all; but where some amongst them are insolvent, those who are ablemust pay the Whole. If many, not in Combination, concur to the same Thing, and itcan plainly be discerned how much each of them contributed to the doing of theMischief; each shall only be accountable for so much as himself was the Cause of. Butif one shall pay the whole, they are all discharged for the same.

Not only he who out of an evil Design does wrong to another, isbound to Reparation of the Damage, but he who does so thro’Negligence or Miscarriage, which he might easily have avoided.For it is no inconsiderable Part of social Duty,34 to manage ourConversation with such Caution and Prudence, that it does notbecome mischievous and intolerable to others; in order to which,Men under some Circumstances and Relations, are obliged to more exact andwatchful diligence: The slightest Default in this point is sufficient to impose theNecessity of Reparation; unless the Fault lay rather more in him who was harmed,than in him who did it; or unless some great Perturbation of Mind, or someCircumstance in the Matter, would not allow the most deliberate Circumspection; *as, when a Soldier in the Heat of Battle in handling his Arms shall hurt his Comrade.

But he who by meer Chance, without any Fault of his own, shalldo Harm to another, is not obliged to Reparation. Becausenothing in this Case being done which can be chargeable uponhim, † there is no Reason, why he who unwillingly did aMischief should rather suffer, than he to whom it was done.

It is also agreeable to Natural Equity, if my Vassal, though not bymy Desire, do Wrong to another, that either I make it good, orsurrender him to the Party injured. For ’tis true, this Vassal isnaturally obliged to Reparation; but he not having wherewith,and his Body being the Property of his Patron, it is but just that such Patron eitherrepair the Loss sustained, or deliver him up. Otherwise such a Bond-man would be atliberty to do what Mischief he listed, if Amends cannot be had from him, because heis the Owner of nothing, no not of the Body he bears; nor from his Patron. For, lethim beat the Slave never so severely, or punish him with the closest imprisonment,that gives no Restitution to the Person wronged.



Damage by Cattle.

XIII.

Recapitulation.

The same seems to be just in the Case of our Cattle or any livingCreature we keep, that, when they against our Wills and by aMotion of their own, contrary to their Natures, do a Mischief to another, we eithermake Reparation, or give up the same. For if I am hurt by any Animal that lives in itsNatural Liberty, I have a Right, by what means I can, to give my self Satisfaction bytaking or by killing it; and this Right doubtless cannot be taken away by its being inthe Possession of another. And whereas the Owner of this Animal makes some Gainby it, but I have suffered Loss by the same; and whereas the Reparation of Wrong ismore to be favoured than procuring Gain; it appears that I may with reason demandSatisfaction from the Owner, or if the Animal be not worth so much, then that it atleast be delivered to me on Account of the Damage sustained.

Thus then, he who without any evil Intention does an Injury toanother, ought of his own accord to offer Reparation, and toprotest himself to have done it unwillingly, lest the injuredPerson take him for his Enemy, and endeavour to retaliate theMischief. But he, who with a naughty design shall wrong his Neighbour, is not onlybound to offer Reparation, but to declare his Repentance for the Fact and to begPardon. On the other side, the wronged Party having Satisfaction made him, isobliged, upon the Repentance of the other, and at his Request, to grant him Pardon.For he that will not be content when Reparation is made him, and a fit Submissionoffered, but still seeks to revenge himself by Force, does nothing else but gratifie hisown ill Nature, and so disturbs the common Peace of Men without cause. And uponthat account Revenge is by the Law of Nature condemned, as proposing no other End,than doing Mischief to those who have hurt us, and pleasing our selves in theirSufferings. Moreover, there is great Reason that Men should be the more apt topardon each others Offences, upon a consideration how often themselves transgressthe Laws of God, and have therefore daily so much need of begging Forgiveness ofHim. [Not still but that the Publick may inflict a Punishment on the Aggressor, tho’ hehave given satisfaction to the Private Man, if the Act was Criminal, and in its NatureEvil.]



I.

Equality of Mankind.

L. N. N. l. 3. c. 2. §1.

II.

Wherein this Equalityconsists. L. N. N. l. 3.c. 2. §2.

III.


Chapter Vii

The Natural Equality Of Men To Be Acknowledged

Man is a Creature not only most sollicitous for the Preservationof Himself; but has of Himself also so nice an Estimation andValue, that to diminish any thing thereof does frequently move inhim as great Indignation, as if a Mischief were done to his Bodyor Estate. Nay, there seems to him to be somewhat of Dignity in the Appellation ofMan: so that the last and most efficacious Argument to curb the Arrogance ofinsulting Men, is usually, I am not a Dog, but a Man as well as your self. Since thenHuman Nature is the same in us all, and since no Man will or can cheerfully join inSociety with any, by whom he is not at least to be esteemed equally as a Man and as aPartaker of the same Common Nature: It follows that, among those Duties which Menowe to each other, this obtains the second Place,That every Man esteem and treat another, as naturally equal tohimself, or as one who is a Man as well as he.

Now this Equality of Mankind does not alone consist in this, thatMen of ripe Age have almost the same Strength, or if one beweaker, he may be able to kill the stronger, either by Treachery,or Dexterity, or by being better furnished with Weapons; but inthis, that though Nature may have accomplished one Manbeyond another with various Endowments of Body and Mind;yet nevertheless he is obliged to an Observation of the Precepts of the Law Naturaltowards the meaner Person, after the same manner as himself expects the same fromothers; and has not therefore any greater Liberty given him to insult upon hisFellows.35 As on the other side the Niggardliness of Nature or Fortune cannot ofthemselves set any Man so low, as that he shall be in worse Condition, as to theEnjoyment of Common Right,36 than others. But what one Man may rightfullydemand or expect from another, the same is due to others also (Circumstances beingalike) from him; and whatsoever one shall deem reasonable to be done by others, thelike it is most just he practise himself: For the Obligation of maintaining Socialityamong Mankind equally binds every Man; neither may one Man more than anotherviolate the Law of Nature in any part. Not but that there are other popular Reasonswhich illustrate this Equality; to wit, that we are all descended of the same Stock; thatwe are all born, nourished, and die after the same Manner; and that God has not givenany of us a certain Assurance that our happy Condition in the World shall not at onetime or other be changed. Besides, the Precepts of the Christian Religion tell us thatGod favours not Man for his Nobility, Power, or Wealth, but for sincere Piety, whichmay as well be found in a mean and humble Man, as in those of high degree.



This Equality shouldmake us benevolent,courteous andcomplaisant to eachother. L. N. N. l. 3. c.2. §4.

IV.

It ought to make usobserve exact Justicein distributing to eachhis own. L. N. N. l. 3.c. 2. §5.

V.

This Equality asufficient Remedyagainst Pride. L. N. N.l. 3. c. 2. §6.

Now from this Equality it follows, That he who would use theAssistance of others in promoting his own Advantage, ought tobe as free and ready to use his Power and Abilities for theirService, when they want his Help and Assistance on the likeoccasions. For he who requires that other Men should do himKindnesses, and expects himself to be free from doing the like,must be of opinion that those other Men are below himself and not his Equals. Henceas those Persons are the best Members of a Community, who without any difficultyallow the same things to their Neighbour that themselves require of him; so those arealtogether uncapable of Society, who setting a high Rate on themselves in regard toothers, will take upon them to act any thing towards their Neighbour, and expectgreater Deference and more Respect than the Rest of Mankind; in this insolentmanner demanding a greater portion unto themselves in those things, to which allMen having a common Right, they can in reason claim no larger a Share than otherMen: Whence this also is an universal Duty of the Law Natural, That no Man, whohas not a peculiar Right, ought to arrogate more to himself, than he is ready to allowto his Fellows, but that he permit other Men to enjoy Equal Privileges with himself.

The same Equality also shews what every Man’s behaviourought to be, when his business is to distribute Justice37 amongothers; to wit, that he treat them as Equals, and indulge not that,unless the Merits of the Cause require it, to one, which he deniesto another. For if he do otherwise, he who is discountenanced isat the same time affronted and wronged, and loses somewhat ofthe Dignity which Nature bestowed upon him. Whence itfollows, that Things which are in common, are of right to be divided by equal Partsamong those who are equal: Where the Thing will not admit of Division, they who areequally concerned, are to use it indifferently; and, if the Quantity of the Thing willbear it, as much as each Party shall think fit: But if this cannot be allowed, then it is tobe used after a stated manner, and proportionate to the Number of the Claimants;because ’tis not possible to find out any other Way of observing Equality. But if it bea Thing of that nature as not to be capable of being divided, nor of being possest incommon, then it must be used by turns; and if this yet will not answer the point, and itis not possible the rest should be satisfied by an Equivalent, the best Way must be todetermin Possession by Lot; for in such Cases no fitter Method can be thought on, toremove all Opinion of Partiality and Contempt of any Party, without debasing thePerson whom Fortune does not favour.

The Consideration of this Natural Equality among Men, ought totake from us all Pride; a Vice that consists herein, When a Man,without any Reason, or, without sufficient Reason, prefershimself to others, behaving himself contemptuously andhaughtily towards them, as being in his Esteem base Underlings,unworthy of his Consideration or Regard. We say, without anyReason. For where a Man is regularly possest of some Right, which gives him aPreference to other Men; he may lawfully make use of, and assert the same, so it bewithout vain Ostentation and the Contempt of others; as on the contrary every one iswith good reason to yield that Respect and Honour which is due to another. But for



the Rest, true Generosity has always for its Companion a decorous Humility, whicharises from a Reflection on the Infirmity of our Nature, and the Faults, of which ourselves either have been, or may hereafter be guilty, which are not less heinous thanthose which may be committed by other Men. The Inference we ought to make fromhence is, that we do not over-value our selves with regard to others, considering thatthey equally with us are endowed with a free Use of their Understanding, which theyare also capable of managing to as good Purpose; the regular Use whereof is thatalone which a Man can call his own, and upon which the true Value of Himselfdepends. But for a Man, without any Reason, to set a high esteem upon himself, is amost ridiculous Vice; first, because ’tis in it self silly, for a Man to carry it high fornothing at all; and then, because I must suppose all other Men to be Coxcombs, if Iexpect from them a great Regard, when I deserve none.

The Violation of this Duty is yet carried farther, if a Man shew his Contempt ofanother by outward Signs, Actions, Words, Looks, or any other abusive way. And thisFault is therefore the more grievous, because it easily excites the Spirits of Men toAnger and Revenge: So that there are many who will rather venture their Lives uponthe spot, much more will they break the Publick Peace, than put up an Affront of thatnature; accounting that hereby their Honour is wounded, and a Slur is put upon theirReputation, in the untainted Preservation of which consists all their Self-satisfactionand Pleasure of Mind.



I. Doing good toothers. L. N. N. l. 3. c.3.

II. Benefactors of thefirst Sort. L. N. N. l.3. c. 3. §2.

III. Such deserveHonour as makethemselves useful tothe Publick. L. N. N.l. 3. c. 3. §3.

IV. Good done toothers without anycharge or cost to theBenefactor.


Chapter Viii

Of The Mutual Duties Of Humanity

Among the Duties of one Man towards another, which must bepractis’d for the sake of Common Society, we put in the thirdplace this, That every Man ought to promote the Good ofanother, as far as conveniently he may. For all Mankind being byNature made, as it were, akin to each other; such a Relation requires more than barelyabstaining from offering Injury and doing Despight to others. It is not thereforesufficient that we neither hurt nor despise our Fellows, but we ought also to do suchgood Offices to others, or mutually to communicate the same, as that commonbrotherly Love may be kept up among Men. Now we become beneficial to ourNeighbour, either indefinitely or definitely; and that either parting with something ornothing our selves.

That Man indefinitely promotes the Good of others, who takessuch necessary care of his Mind and Body, that he may be able toperform such Actions as may be profitable to his Neighbour; orwho by the Acuteness of his Wit finds out something that may beof Advantage to Mankind. So that those are to be accounted guilty of a Breach of thisDuty, who betaking themselves to no honest Calling spend their Lives in Sloth, as iftheir Souls were given them but to serve as Salt to keep their Bodies from stinking, oras if they were born but to make up a Number, and eat their Share: And such as, beingcontent with the Estates their Ancestors have left ’em, think they may give themselvesup to Idleness without blame, because they have whereon to live by the Industry ofothers: And those who alone enjoy what they have got, not bestowing any Part uponothers: Finally, all those who, like Hogs, do Good to no one till they die; and all thatSort of Wretches who only serve to load the Earth with their useless Weight.

On the other side, to those who make it their Business to deservewell of Mankind, the Rest of the World owe thus much, that theydon’t envy ’em, nor lay any Rubs in their way, while by theirnoble Actions they seek the Universal Good: And if there be noPossibility for themselves to imitate ’em, they at least ought topay a Regard to their Memory and promote their Honour, whichperhaps is all they shall get by their Labours.

Now not to do readily all that Good to others which we can dowithout Detriment, Labour, or Trouble to our selves, is to beaccounted detestable Villany and Inhumanity. The following arewont to be called Benefits which cost nothing, or which are ofAdvantage to the Receiver, without being a Charge to theBestower. Such as, to allow the Use of the running Water; the letting another light hisFire by mine; the giving honest Advice to him that consults me; the friendly Directing



V. Good done toothers with anExpence to theBenefactor. L. N. N. l.3. c. 3. §15.

VI. Gratitude. L. N.N. l. 3. c. 3. §6.

VII. Thanks.

a wandring Man to the right Way, and the like. So, if a Man have a mind to quit thePossession of a Thing, either because he has too much, or because the keeping of itbecomes troublesome, why should he not rather leave it fit for Use to others,(provided they are not Enemies) than to mar or destroy it? Hence it is a Sin for us tospoil Victuals, because our Hunger is satisfied; or to stop up, or cover a Spring,because we have quenched our Thirst, or to destroy Buoys set up to discover Shelvesand Sands, or *Mercuries in Roads, when our selves have made use of them. Underthis Head may be comprehended also the little Alms bestow’d by the Wealthy uponthose who are in Want; and that Kindness which we justly shew to Travellers,especially if under Necessities, † and the like.

But it is a higher Degree of Humanity, out of a singular Favourto do a good Turn freely, which costs either Charge or Pains,that so another may either have his Necessities relieved, oracquire some considerable Advantage. And these, by way ofExcellence, are called Benefits, and are the fittest Matter forrendring Men Illustrious, if rightly tempered with Prudence andMagnanimity. The Dispensation of which, and the Manner, are to be regulatedaccording to the Condition of the Giver and Receiver. Wherein Care is first of all tobe taken; 1. That the Bounty we are about to exercise do not more Hurt than Good tothe Person to whom we design a Kindness, and to others: Next, 2. That our Bounty benot greater than consists with our Ability: Then, 3. That the Worthiness of Men beregarded in our Distribution, and Preference given to the Well-deserving. We musttherefore consider how far each stands in need of our Help, and observe the Degreesof Relation among Men; moreover, ’tis to be observ’d what every one wants most,and what they can or cannot compass with or without our Assistance.‡ The Manneralso of exercising Acts of Kindness will render them more acceptable, if they be donechearfully, readily, and heartily.

And then he who receives a Benefit ought to have a gratefulMind, by which he is to make it manifest, that it was acceptableto him, and that for its sake he has a hearty Respect to the Donor,and that he wants nothing but an Opportunity or an Ability of making, if possible, aRequital of the full value or more. For it is not absolutely necessary that the Returnswe make be exactly tantamount to the Courtesy we receive, but our Good-will andhearty Endeavour are in lieu to be accepted. Not but that sometimes he who pretendsto have done me a Kindness, may, notwithstanding, have no Reason to say, he hasobliged me thereby; as if a Man shall drag me out of the Water, into which he pushedme before; in such a Case I owe him no thanks.

Now by how much the more Benefits are apt to oblige and placeEngagements on the Minds of Men, by so much ought the Partywho is beholden to be the more eager to return his Thanks. If it be but because weought not to suffer our Benefactor, who out of a good Opinion he had of us has doneus a Kindness, to think worse of us; and because we should not receive any Favour,but with a Design to endeavour, that the Giver shall never have Cause to repent ofwhat he has done for us. For, if for any particular Reason we are not willing to bebeholden to such or such a Man, we may civilly avoid the Accepting of the Courtesy.



VIII. Ingratitude. L.N. N. l. 3. c. 3. §17.

And truly if no grateful Returns were to be made upon the Receipt of Benefits, itwould be unreasonable for any Man to cast away what he has, and to do a good Turnwhere beforehand he is sure it will be slighted. By which means all Beneficence,Good-Will, and Brotherly-Love would be lost among Men; and there would be nosuch things as doing Kindnesses frankly, nor any Opportunities of procuring mutualFriendships, left in the World.

And though the ungrateful Man, cannot be precisely said to do aWrong; yet the Charge of Ingratitude is look’d upon as morebase, more odious, and detestable than that of Injustice; because’tis judged a Sign of an abject and rascally Soul for a Man to shew himself unworthyof the good Opinion, which another had entertain’d of his Probity, and not to bemov’d to some Sense of Humanity by Benefits, which have a Power to tame even theBrutes. But, let Ingratitude be never so abominable, yet simply considered as it is abare Forgetting of a Courtesy, and a Neglect of making a due Return upon occasion,Courts of Judicature take no cognizance of it; for it would lose the Name of Bounty, ifit were redemandable by Law, as Money lent is; because then it would be a Credit.And whereas it is a high Instance of Generosity to be grateful, it would cease to be agenerous Action, when so to do could not be avoided. Beside that it would take up theBusiness of all Courts, by reason of the great Difficulty in making an Estimate of allthe Circumstances, which either would enhance or lessen the Benefit: And that it wasto this End I bestow’d it, (to wit, that I did not therefore demand a Promise ofRepayment,) that so the other might have an Occasion of shewing his Gratitude, notfor Fear of Punishment, but out of Love to Honesty; and to manifest, that it was not inHopes of Gain, but only out of mere Kindness that I was liberal of that, which I wouldnot take care should be reimburs’d to me. But for him who improves his Ingratitude,and not only gives no thanks to, but injures his Benefactor; * this shall cause anAggravation of his Punishment, because it plainly demonstrates the profligate Villanyand Baseness of his Mind.



I.

Contracts.

II.

The Necessity of ’em.

III.

Veracity. L. N. N. l.3. c. 4. §2.


Chapter Ix

The Duty Of Men In Making Contracts

From the Duties Absolute to those that are Conditional we musttake our Passage, as it were, through the intermediateContracts;38 for, since all Duties, except those alreadymentioned, seem to presuppose some Covenant either expressedor implied; † we shall therefore in the next place treat of the Nature of Contracts, andwhat is to be observed by the Parties concerned therein.

Now it is plain that it was absolutely necessary for Men to enterinto mutual Contracts. For though the Duties of Humanitydiffuse themselves far and near thro’ all the Instances of the Lifeof Man; yet that alone is not Ground sufficient, whereon to fixall the Obligations which may be necessary to be made reciprocal between one andanother. For all Men are not endowed with so much Good Nature as that they will doall good Offices to every Man out of meer Kindness, except they have some certainExpectation of receiving the like again: And very often it happens, that the Serviceswe would have to be done to us by other Men are of that Sort, that we cannot withModesty desire them. Frequently also, it may not become one of my Fortune, or in myStation, to be beholden to another for such a Thing. So that many times anothercannot give, neither are we willing to accept, unless that other receive an Equivalentfrom us; and it happens not seldom, that my Neighbour knows not how he may beserviceable to my occasions. Therefore, that these mutual good Offices, which are theProduct of Sociality, may be more freely and regularly exercised, it was necessary thatMen should agree among themselves, concerning what was to be done on this sideand on that, which no Man from the Law of Nature alone could have assured himselfof. So that it was beforehand to be adjusted what, this Man doing so by hisNeighbour, he was to expect in lieu of the same, and which he might lawfullydemand. This is done by means of Promises and Contracts.

With respect to this general Duty it is an Obligation of the Lawof Nature, that every Man keep his Word, or fulfil his Promisesand make good his Contracts. For without this, a great Part ofthat Advantage, which naturally accrues to Mankind by a mutualCommunication of good Offices and useful Things, would belost. And were not an exact Observance of one’s Promise absolutely necessary, noMan could propose to himself any Certainty in whatever he design’d, where he mustdepend upon the Assistances of others. Besides that Breach of Faith is apt to give thejustest Occasions to Quarrels and Wars. For if, according to my Agreement, I performmy Part, and the other falsifie his Word, whatsoever I have done or deposited inExpectation of his Performance, is lost. Nay, though I have done nothing as yet, yet itmay be a Mischief for me by this Disappointment to have my Affairs and Purposesconfounded, which I could have taken care of some other way, if this Man had not



IV.

Distinction betweenwhat is due onCourtesy orHumanity, and whatin particular Contractor Promise. L. N. N. l.3. c. 4.

V.

Obligations different.L. N. N. l. 3. c. 5.

VI.

Promises imperfect.L. N. N. l. 3. c. 5. §6.

VII.

Promise perfect.

VIII.

No Obligation wherethe voluntary Consentof Parties is wanting.L. N. N. l. 3. c. 6.

offered himself. And there is no reason I should become ridiculous, only for havingtrusted one whom I took to be an honest and a good Man.

But it is to be observed, that such Things as are due to me only ofCourtesie, differ from those which I can claim on account of aContract or Promise, in this respect chiefly: That, ’tis true, I mayfairly desire the honest Performance of the first: But then, if theother shall neglect my Request, I can only charge him withRudeness, Cruelty or hard dealing; but I cannot compel him todo me reason either by my own Power or by any superiorAuthority. Which I am at liberty to do in the latter Case, if thatbe not freely performed which ought to have been according toan absolute Promise or Covenant.* Hence we are said to have an imperfect Right tothose things, but to these our Claim is perfect; as also that to the Performance of thefirst we lie under an imperfect, but to the other under a perfect Obligation.

Our Word may be given, either by a single Act, where one Partyonly is obliged; or by an Act reciprocal, where more than one areParties. For sometimes one Man only binds himself to dosomewhat; sometimes two or more mutually engage each otherto the Performance of such and such things. The former whereofis called a Promise, the latter a Covenant or Contract.

Promises may be divided into imperfect and perfect. The formeris, when we mean indeed to be obliged to make good our Wordto him to whom we promise; but we intend not to give him aPower of requiring it, or of making use of force to compel us toit. As, if I say thus, I really design to do this or that for you, and Idesire you’ll believe me. Here I seem more obliged by the Rules of Veracity than ofJustice; and shall rather appear to have done the promised Service out of a Regard toConstancy and Discretion, than to Right. Of this Sort are the Assurances of great Menwho are in favour, whereby they seriously, but not upon their Honours, promise theirRecommendation or Intercession, their Preferring a Man, or giving him their Vote,which yet they intend shall not be demanded of them as Matters of Right, but desirethey may be wholly attributed to their Courtesie and Veracity; that the Service they domay be so much the more acceptable, as it was uncapable of Compulsion.

But this is called a perfect Promise, when I not only oblige myself by my Word, but I give the other Party Authority to requireat my hands the Performance of what I stipulated, as if ’twere aDebt.

Moreover, that Promises and Contracts may have a fullObligation upon us to give and to do somewhat, which before wewere at liberty not to have done; or to omit that which we had aPower to do, ’tis especially requisite that they be made with ourfree Consent. For whereas the making good of any Promise orContract may be accompanied with some Inconvenience, there



IX.

Consent express ortacit. L. N. N. l. 3. c.6. §16.

X.

Who capable ofgiving Consent. L. N.N. l. 3. c. 6. §4.

L. N. N. l. 3. c. 6. §4.

XI.

Consent in youngPersons. L. N. N. l. 3.c. 6. §5.

can be no readier Argument why we should not complain, than we consented theretoof our own accord, which it was in our power not to have done.

And this *Consent is usually made known by outward Signs, as,by Speaking, Writing, a Nod, or the like; tho’ sometimes it mayalso be plainly intimated without any of them, according to theNature of the thing and other Circumstances. So Silence in someCases, and attended with some Circumstances, passes for a Signexpressing Consent. To this may be attributed those tacitContracts, where we give not our formal Consent by the Signs generally made use ofamong Men; but the Nature of the Business, and other Circumstances make it fairlysupposable. Thus frequently in the principal Contract, which is express, another isincluded which is tacit, the Nature of the Case so requiring: And it is usual, in mostCovenants that are made, that some tacit Exceptions and imply’d Conditions must ofnecessity be understood.

But to render a Man capable of giving a valid Consent, ’tisabsolutely requisite, that he have so far the Use of his Reason, asfully to understand the Business that lies before him, and toknow whether it be meet for him, and whether it lie in his Powerto perform it; and having consider’d this, he must be capable ofgiving sufficient Indications of his Consent. Hence it follows,that the Contracts and Promises of Ideots and Madmen (except such whose Madnessadmits of lucid Intervals) are null and void: And the same must be said of those ofDrunken Men,if they are besotted to that degree as that their Reason isoverwhelm’d and stupify’d. For it can never be accounted a realand deliberate Consent, if a Man, when his Brains are disorder’d and intoxicated,shall on a sudden and rashly make foolish Engagements, and give the usualDemonstrations of Consent, which at another time would have obliged him: and itwould be a Piece of Impudence for any Man to exact the Performance of such aPromise, especially if it were of any considerable weight. But if one Man shall layhold on the Opportunity of another’s being drunk, and craftily making an advantageof his Easiness of Temper under those Circumstances, shall procure any Promise fromhim, this Man is to be accounted guilty of a Cheat and Knavery: Not but that, if, afterthe Effects of his Drink are over, he shall confirm such Promise, he shall be obliged;and this not with regard to what he said when drunk, but to his Confirmation whensober.

As for Consent in young Persons, it is impossible for the LawsNatural to determine so nicely the exact Time how long Reasonwill be too weak in them to render ’em capable of makingEngagements; because Maturity of Discretion appears earlier insome than in others; Judgment therefore must be made hereof bythe daily Actions of the Person. Though this is taken care for inmost Commonwealths, by Laws prescribing a certain Term of years to all in general;and in many Places it is become a commendable Custom to set these under theGuardianship of wiser Men, whose Authority must be had to any Contracts they



XII.

Mistake in Contracts.L. N. N. l. 3. c. 6. §6.

XIII.

Guileful Contracts. L.N. N. l. 3. c. 6. §8.

make, till the other’s youthful Rashness be a little abated. For Persons of this Age,however perhaps they may well enough understand what they do, yet for the most partact with too much Vehemence and Rashness; are too free and easie in their Promises,eager and over confident in their Hopes, proud of being thought generous and liberal,ambitious and hasty in contracting Friendships, and not furnished with prudentCaution and necessary Diffidence. So that he can hardly pass for an honest Man, whomakes any advantage of the Easiness of this Age, and would gain by the Losses ofyoung people, who for want of Experience could not foresee, or place a true Estimatethereon.

Another Thing which invalidates Consent, and by consequencethe Promises and Pacts that are built upon it, is Errour orMistake; thro’ which it comes to pass, that the Understanding ischeated in its Object, and the Will in its Choice and Approbation.Concerning Error, these three Rules are deligently to beobserv’d. (I.) That when to my Promise, some Condition is supposed, without theConsideration whereof I should not have made such Promise; the same shall, withoutthe other, have no Obligation upon me. For in this Case the Promiser does not engageabsolutely, but upon a Condition, which not being made good, the Promise becomesnull and void. (2.) *If I am drawn into a Bargain or Contract by a Mistake, whichMistake I find, before as we use to say Bulk is broke,39 or any thing done in order tothe Consummation thereof, it is but Equity that I should be at liberty to retract;especially if upon the Contract making, I plainly signify’d for what Reason I agreed toit; more particularly, if the other Party suffers no Damage by my going off from myBargain, or, if he does, that I am ready to make Reparation. But when, as was saidafore, Bulk is broke, and the Mistake is not found till the Covenant is either wholly orin part already performed, the Party who is under an Errour cannot retract, any fartherthan the other shall of Courtesy release to him. (3.) When a Mistake shall happenconcerning the Thing, which is the Subject of the Contract, such Contract is invalid,not for the sake of the Mistake, but because the Laws and Terms of the Agreement arenot really fulfilled. For in Bargains of this nature, the Thing and all its Qualificationsought to be known, without which Knowledge a fair Agreement cannot be supposedto be made. So that he who is like to suffer Wrong by any Defect therein, either maythrow up his Bargain, or force the other to make the Thing as it should be, or else topay him the Value, if it happen’d through his Knavery or Negligence.

But if a Man be drawn into a Promise or Bargain by the Craftand fraudulent Means of another; then the Matter is thus to beconsidered. (1.) If a third Man were guilty of the Cheat, and theParty with whom the Bargain is driven was not concerned in it,the Agreement will be valid: But we may demand of him whopractis’d the Knavery, so much as we are Losers by being deceiv’d. (2.) He whoknavishly procures me to promise or contract with him, shall not set me under anyObligation. (3.) If a Man will indeed come freely with a plain* Design to drive aBargain, but in the very Action shall perceive a Trick put upon him; suppose in theThing bargain’d for, its Qualities or Value; the Contract shall be so far naught, as toleave it in the Power of him who is deceiv’d, either to relinquish his Bargain, or torequire Satisfaction for his Loss. (4.) If unfair Dealing chance to be us’d in some



XIV.

Contracts suspicious.L. N. N. l. 3. c. 6. §9.

XV.

Contracts thro’ Fear.L. N. N. l. 3. c. 7.§11.

XVI.

things not essential to the Business, and which were not expressly under regard, thisweakens not the Agreement, if, for the rest, it be regularly made; tho’ perhaps oneParty might have a Secret and sly Respect to some such thing, at the very time ofdriving the Bargain, and cunningly conceal’d such his View till the Contract wereperfectly transacted.

Whensoever Fear is to be consider’d in Promises or Bargains, itis two-fold, and may either be call’d a probable Suspicion lestwe should be deceiv’d by another, and this because he is onewho is very much addicted to unjust Practices, or has sufficientlyintimated his fraudulent Design; or else a panic Terror of theMind, arising from some grievous Mischief threatned, except we make such a Promiseor Contract. Concerning the first Sort of Fear, (or Mistrust rather) these Things are tobe observ’d. (1.) He who trusts the Engagements of one who is notoriously negligentof his Word and Troth, acts very imprudently; but, for that Reason only can have noRemedy, but shall be obliged. (2.) When a Bargain is fully made and compleated, anda Man hath no new Reasons to apprehend any knavish Designs from the other Party,it shall not be sufficient to invalidate the Agreement that the other was, on otherOccasions before this Agreement, known to have been trickish and deceitful. For sinceour Knowledge of such his former Behaviour did not prevent our making theAgreement with him, it ought not to prevent our making it good to him. (3.) Whereafter the Bargain made, it appears plainly that the other Person intends to elude hisPart of the Contract, as soon as I have perform’d mine; here I cannot be forced tocomply first, till I am secure of a Performance on the other side.

As for the other Sort of Fear, these Rules are to be observ’d. (1.)If a Man has taken an Obligation upon him, thro’ Fear ofMischief threatned by a third Person, neither at the Instigation,nor with the Confederacy of the Party to whom the Engagementwas made, he stands firmly bound to perform what he promis’d.For there appears no Fault in him to whom the Promise wasmade, which can render him uncapable of acquiring a Right to the Performance of it;on the contrary, he may justly challenge a Requital, in that he lent his Assistance tothe other, in warding off the Danger he apprehended from the third Person. (2.) Allsuch Covenants that are made out of Fear or Reverence of our lawful Superiours, orby the Awe we have for those to whom we are very much beholden, shall be firm andgood. (3.) Those Bargains which are wrongfully and forcibly extorted from a Man bythe Person to whom the Promise or Agreement is made, are invalid, For the Violencehe unjustly uses to set me under that Fear, renders him uncapable of pretending to anyRight against me on account of such Action of mine. And whereas in all other Cases,every Man is bound to Reparation of what Wrong he shall do to another: this *Restitution to which he is bound is understood as it were to take off any Obligationfrom such Promise, since if what was promised were paid, it ought to be immediatelyrestored.



Consent mutual. L. N.N. l. 3. c. 6. §15.

XVII.

ImpossibleEngagements. L. N.N. l. 3. c. 7.

XVIII.

UnlawfulEngagements. L. N.N. l. 3. c. 7. §6, 7.

Moreover not only in Contracts, but in Promises the Consentought to be reciprocal; that is, both the Promiser and he to whomthe Promise is made must agree in the Thing. For if the lattershall not consent, or refuse to accept of what is offered, the thing promised remainsstill in the Power of the Promiser. For he that makes an offer of any thing, cannot besupposed to intend to force it upon one that is unwilling to receive it, nor yet to quithis own Title to it; therefore when the other denies Acceptance, he who proffered itloses nothing of his Claim thereto. If the Promise was occasion’d by a Request beforemade, the same shall be accounted to oblige so long, as till such Request be expresslyrevok’d; for in that case the thing will be understood to be accepted beforehand;provided yet that what is offer’d be proportion’d to what was desired. For if it be not,then an express Acceptance is requisite; because it may often do me no good toanswer my Request by halves.

As for the Matter of our Promises and Contracts, it is absolutelynecessary, that what we promise, or make a Bargain for, be inour Power to make good, and that so to do be not prohibited byany Law; otherwise we engage our selves either foolishly orwickedly. Hence it follows that no Man is obliged to do Thingsimpossible. But if it be a Thing which at the time of the Bargainmaking was possible, and yet afterwards by some Accident, without any Fault of theContracter, became altogether impossible, the Contract shall be null, if there benothing as yet done in it; but if one Party have perform’d somewhat towards it, whathe has advanced is to be restor’d to him, or an Equivalent given; and if this cannot bedone, by all means it is to be endeavour’d that he suffer no loss thereby. For inContracts that is principally to be regarded which was expressly in the Bargain; if thiscannot be obtain’d, it must suffice to give an Equivalent; but if neither can this behad, at least the utmost Care is to be taken that the Party undergo no Damage. Butwhere any Man shall designedly, or by some very blameable Miscarriage, renderhimself uncapable of making good his Part of the Bargain, he is not only obliged touse his utmost Endeavour, but ought also to be punish’d, as it were, to make up theamends.

It is also manifest, that we cannot set our selves under anyObligation to perform what is unlawful. For no Man can engagehimself farther than he hath lawful Authority so to do. But thatLegislator who prohibits any Action by a Law takes away alllegal Power of undertaking it, and disables any Man fromobliging himself to perform it. For it would imply aContradiction, to suppose, that from a Duty enjoyn’d by the Laws should arise anObligation to do that which the same Laws forbid to be done. So that he transgresseswho promises to do what is unlawful, but he is doubly a Transgressor who performsit. Hence also it follows, that neither are those Promises to be kept, the Observation ofwhich will be mischievous to him to whom they are made; because it is forbidden bythe Law-Natural to do hurt to any Man, even though he do foolishly desire it. And if aContract be made to do some filthy and base Thing, neither shall be obliged to fulfil it.If such filthy Thing be done by one Party pursuant to the Bargain, the other shall not



XIX.

Engagementsconcerning other men,L. N. N. l. 3. c. 7.§10.

XX.

Conditions various L.N. N. l. 3. c. 8. §1.

XXI.

Mediatory Contracts.L. N. N. l. 3. c. 9 §1.

be bound to give the Reward agreed for; * but if any thing be already given on thataccount, it cannot be demanded again.

And then, it is plain, that such Engagements and Bargains as weshall make of what belongs to other Men are altogetherinsignificant, so far as they are not ours, but subject to the Willand Direction of others. But if I promise thus; I will use myEndeavour that such a Man (always supposing him to be one notabsolutely under my Command) shall do so or no: Then I amobliged by all methods morally possible, (that is, so far as the other can fairly requestof me, and as will consist with Civility) to take pains to move that Person to performwhat is desired. Nay we cannot promise to a third Man Things in our own possession,or Actions to be done by our selves, to which another has acquir’d a Right, unless it beso order’d, as not to be in force till the time of that other’s Claim is expir’d. For hewho by antecedent Pacts or Promises has already transferr’d his Right to another, hasno more such Right left to pass over to a third Person: And all manner ofEngagements and Bargains would be easily eluded, if a Man after having contractedwith one, might be at liberty to enter a Treaty with another, wherein Disposals shouldbe made contrary to the first Agreement, and with which it is impossible this shouldconsist. Which gives foundation to that known Rule, First in Time, prior in Right.

Beside all which it is to be chiefly observ’d concerningPromises, that they are wont to be made positively andabsolutely; or conditionally, that is, when the Validity thereoflies upon some Event depending on Chance or the Will of Man.

Now Conditions are either possible or impossible; and the former are subdivided intoCasual or fortuitous, which we cannot cause to be or not to be; or Arbitrary, or suchas are in the Power of him to whom the Promise is made, that they are or are notcomply’d with; or else Mixt, the fulfilling of which depends partly on the Will of thePerson receiving the Promise, and partly on Chance.

Impossible Conditions are either such as are naturally or morally so, that is, someMatters by the Nature of Things cannot be done; others by the Direction of the Lawsought not to be done. Such Conditions then as these being annex’d, do, according tothe plain and simple Construction of the Words, render the Promise Negative, andtherefore null; tho’ it is true it may be so provided by Law, that if to Affairs of greatConcernment any such impossible Conditions should be annex’d the Agreement mayremain good, rejecting these Conditions as if they had never been made; that so Menmay not have busied themselves about that which otherwise can signifie nothing.

Lastly, we promise and contract, not only in our own Persons,but oftentimes by the Mediation of other Men, whom weconstitute the Bearers and Interpreters of our Intentions; bywhose Negociations, if they deal faithfully by us in following theInstructions we gave, we are firmly obliged to those Persons whotransacted with them as our Deputies.



XXII.

Conclusion.

And thus we have done with the Absolute Duties of Man, bywhich, as it were, we naturally pass to the Conditional Duties ofMen. And these do all presuppose some Human Institution,founded upon an Universal Agreement, and so introduced intothe World, or else some peculiar State or Condition. And of this Sort of Institutions,there are three chiefly to be insisted on, to wit, Speech or Discourse, Property and theValue of Things, and the Government of Mankind. Of each of these, and of the Dutiesarising therefrom we shall next discourse.



I.

General Rule. Todeceive no one by anymeans established toexpress our Thoughts.

II.

Uniform Significationof Words. L. N. N. l.4. c. 1.

III.

Discourse to be plain.L. N. N. l. 4. c. 1. §6.


Chapter X

The Duty Of Men In Discourse

How useful and altogether necessary an Instrument of HumanSociety Discourse40 is, there is no Man can be ignorant; sincemany have made that only an Argument to prove Man to be byNature design’d for a Social Life. Now that a lawful andbeneficial Use may be made hereof for the Good of the sameHuman Society, the Law of Nature has given Men this for aDuty, That no Man deceive another either by Discourse, or any other Signs whichcustomarily are accepted to express our inward Meaning.

But that the Nature of Discourse may be more throughlyunderstood, it must first be known, that there is a two-foldObligation respecting Discourse, whether exprest with the Voice,or written in Characters. The first is, that those who make use ofthe same Language, are obliged to apply such certain Words tosuch certain Things, according as Custom has made them tosignify in each Language. For since neither any Words nor any particular Strokesform’d into Letters can naturally denote any certain Thing (otherwise all Languagesand Characters for writing would be the same; and hence the Use of the Tonguewould be to no purpose if every Man might call every Thing by what Name hepleas’d;) it is absolutely necessary among those who speak the same Language, thatthere be a tacit Agreement among them, that this certain Thing shall be so, or socall’d, and not otherwise. So that unless an uniform Application of Words be agreedupon, ’twill be impossible for one Man to gather the Meaning of another from hisTalk. By virtue then of this tacit Compact, every Man is bound in his commonDiscourse to apply his Words to that Sense, which agrees with the receiv’dSignification thereof in that Language: From whence also it follows, that albeit aMan’s Sentiments may differ from what he expresses in Words, yet in the Affairs ofHuman Life he must be look’d upon as intending what he says, tho’, as was said,perhaps his inward Meaning be the clear contrary. For since we cannot be inform’d ofanother’s Mind otherwise than by outward Signs, all Use of Discourse would be to nopurpose, if by mental Reservations, which any Man may form as he lists, it might bein his power to elude what he had declar’d by Signs usually accepted to that end.

The other Obligation which concerns Discourse, consists in this,that every Man ought by his Words so to express to another hisMeaning, that he may be plainly understood. Not but that it is ina Man’s power to be silent, as well as to speak; and whereas noMan is bound to tell every one all that he bears in his Mind; it isnecessary that there be some peculiar Obligation that shall engage him first to speak,and then so to speak as that another shall fully understand his Meaning. SuchObligation may arise from a particular Compact, or some common Precept of the Law



IV.

Silence. L. N. N. l. 4.c. 1. §7.

V.

CounterfeitDiscourse.

VI.

Figurative Speech.

VII.

Verity. L. N. N. l. 4.c. 1. §8.

Natural, or from the Nature of the present Affair, in which Speech is made use of: Foroftentimes a Bargain is made expressly with a Man, that he shall disclose to me allthat he knows in some Matter; as suppose I desired to be instructed in any Science:Frequently also I may be commanded by some Precept of the Law of Nature tocommunicate my Skill to another, that by this Means I may be helpful to him, or that Imay save him from Mischief, or that I may not give him some Cause or Occasion ofreceiving a Harm: And lastly, the present Case may require me to declare my Opinionin a Matter wherein another is concerned; as it often happens in Contracts of thegreatest Importance.

But because it cannot always happen, that upon any of theseHeads I am obliged to signify my Thoughts upon any Matter, itis plain that I am not bound to disclose in Words any more thananother has a Right either perfect or imperfect to require. So thatI may, by holding my Tongue, lawfully conceal what he has nojust Claim to the Knowledge of, or to the Discovery whereof I lie under noObligation, however earnestly it be desir’d.

Nay, since Speech was not only ordain’d for the Use of others,but our own Benefit also; therefore whensoever my privateInterest is concern’d, and it occasions Damage to no Body else, Imay so order my Words, that they may communicate a Sensedifferent from that which I bear in my Mind.

Lastly, because oftentimes those to whom we talk upon someMatters may be so disposed, that from a downright and plainDiscourse they would perceive the true State of the Case, whichought rather to be conceal’d, because a full Knowledge wouldnot procure the good End we drive at, but be a Detriment to ’em; we may in suchCases use a figurative or shadow’d way of Speech, which shall not directly representour Meaning and plain Sense to the Hearers. For he who would and ought to benefitanother, cannot be bound to attempt it after such a manner, as shall incapacitate himfrom obtaining his End.

From what has been said may be gather’d wherein that Verityconsists, for their Regard to which good Men are so muchcelebrated; to wit, that our Words do fitly represent our Meaningto any other Person who ought to understand ’em, and which it isour Duty to express plainly to him, either by a perfect orimperfect Obligation; and this to the end either that he upon knowing our Minds maymake to himself some Benefit thereby, or that he may avoid some undeserv’d Evil,which he would incur upon a wrong Understanding of the Case. Hence by the Bye itis manifest, that it is not always to be accounted Lying, when even for the nonce aTale is told concerning any Thing in such a manner as does not exactly quadrate withthe Thing it self, nor with our own Opinion of it; and consequently, that the Congruityof Words with Things, which constitutes the Logical Verity, is not in all Points thesame with Moral Truth.



VIII.

A Lye.

IX.

Innocent Untruths. L.N. N. l. 4. c. 1. §11.

X.

Equivocation andmental Reservation.L. N. N. l. 4. c. 1.§14.

On the contrary that is rightly call’d a Lye, when our Words beara different Signification from that which we think in our Minds,whereas the Person to whom we direct our Discourse has a Rightto understand the Thing as it really is, and we are under anObligation of making our Meaning plain to him.

From what is said it appears, * that those are by no Meanschargeable with Lying, who entertain Children or the like withFables and fictitious Discourses for their better Information, theybeing suppos’d uncapable of the naked Truth. As neither arethose who make Use of a feign’d Story to some good End, whichcould not be attain’d by speaking the plain Truth; suppose, to protect an Innocent, toappease an angry Man, to comfort one who is in Sorrow, to encourage the Fearful, topersuade a nauseating Patient to take his Physick, to soften the Obstinate, or to divertthe evil Intention of another, and the like; or, if the Secrets and Resolutions of aCommunity41 are to be kept from publick Knowledge, we may raise false Rumours inorder to conceal ’em, and to mislead the importunate Curiosity of others; or, if wehave an Enemy, whom by open Force we cannot Annoy, we may, by way ofStratagem, make Use of any lying Tales to do him Mischief.

On the other side, if any Man be bound in Duty to signifieplainly his true Meaning to another, he is not without Blame, ifhe discover only a part of the Truth, or amuse him withambiguous Discourse, or use some mental Reservation notallow’d in the common Conversation of Men.



I.

An Oath. L. N. N. l. 4.c. 2.

II.

The End and Use.

III.

Swearing by what. L.N. N. l. 4. c. 2. §3.

IV.

Forms how to beaccommodated. L. N.N. l. 4. c. 2. §4.


Chapter Xi

The Duty Of Those Which Take An Oath

All Men agree in the Opinion, That an Oath gives a greatadditional Confirmation to all our Assertions, and to thoseActions which depend upon our Discourse. An Oath is, *AReligious Asseveration, by which we disavow the DivineClemency, or imprecate to our selves the Wrath of God if wespeak not the Truth. Now when an All-wise and an Almighty Witness and Guaranty isinvok’d, it causes a strong Presumption of the Truth, because no Man can easily bethought so Wicked, as to dare rashly to call down upon himself the grievousIndignation of the Deity. Hence it is the Duty of those that take an Oath, To take thesame with awful Reverence, and religiously to observe what they have sworn.

Now the End and Use of an Oath is chiefly this, To oblige Menthe more firmly to speak the Truth, or to make good theirPromises and Contracts out of an Awe of the Divine Being, whois infinitely Wise and Powerful; whose Vengeance theyimprecate to themselves when they Swear, if they wittingly are guilty of Deceit;whereas otherwise the Fear of what Men can do may not be sufficient; becausepossibly they may have Hope to oppose or escape their Power, or to beguile theirUnderstandings.

Since GOD alone is of infinite Knowledge and of infinite Power,it is a manifest Absurdity to swear by any other Name but theName of GOD only; that is, in such a Sense, as to invoke it for aWitness to our Speech, and for an Avenger of our Perjury: But ifin the Form of Oaths any other Things, that we hold Dear, orhave in Veneration or Esteem, be mention’d, it is not to be understood that suchThings are invok’d as Witnesses to our Truth or Avengers of our Falsehood; but GODonly is herein invok’d, with a Desire, that if we swear falsely, he would be pleas’d topunish our Crime, in these Things especially for which we are most nearly andtenderly concern’d.

In Oaths the Form which is prescrib’d, (by which the Personswearing invokes GOD as a Witness and an Avenger) is to beaccommodated to the Religion of the said Swearer; that is, to thatPersuasion and Opinion of GOD which he is of. For ’tis to noPurpose to make a Man swear by a God, whom he does notbelieve, and consequently does not fear. But no Man supposeshimself to take an Oath in any other Form, nor under any other Notion, than thatwhich is consonant to the Precepts of his Religion, which, in his Opinion, is the true.Hence also it is, that he who swears by false Gods, which yet himself takes to be trueones, stands obliged, and if he falsifies is really guilty of Perjury; because whatever



V.

Deliberationnecessary. L. N. N. l.4. c. 2. §5.

VI.

Oaths how obliging.L. N. N. l. 4. c. 2. §6.

his peculiar Notions were, he certainly had some Sense of the Deity before his Eyes;and therefore by wilfully forswearing himself he violated, as far as he was able, thatAwe and Reverence which he ow’d to Almighty GOD.

That an Oath may be binding, ’tis necessary it be taken withdeliberate Thoughts, and a real Design: Whence he shall not beobliged by an Oath who meerly recites it; or speaking in the firstPerson, dictates the concept formal Words thereof to anotherwho is to say after him. But he who shall seriously behavehimself as one that is about to swear solemnly, shall be obliged,whatsoever mental Reservations he all the while may harbour in his Mind. Forotherwise all Oaths, nay, all Methods of mutual Obligation by the Intervention of theplainest Significations would be of no Use to human Life, if any Man by his tacitIntention could hinder such an Act from obtaining such an Effect as it was firstinstituted to produce.

We ought likewise carefully to observe, that Oaths do not ofthemselves produce a new and peculiar Obligation, but are onlyapply’d as an Accessional Strength, and an additional Bond to anObligation, in its nature valid before. For whenever we swear,we always suppose some Matter, upon non-performance ofwhich we thus imprecate the Vengeance of Heaven. But now this would be to nopurpose, unless the Omission of the Thing suppos’d had been before unlawful, andconsequently, unless we had before been obliged. Tho’ indeed it frequently happens,that we comprehend in one Speech, both the principal Obligation and the additionalBond of the Oath; as thus, As God help me, I’ll give you a hundred Pounds. Wherethe Oath is not superfluous, albeit ’tis added to a Promise that might have been validof it self. Because tho’ every good Man believes a bare Promise to oblige, yet ’tislook’d upon to be the more firm when ’tis reinforced with an Imprecation ofVengeance from above upon a Failure. Hence it follows, that any Acts which werebefore attended with some inward Flaw, hindring any Obligation to arise from them,cannot be made obligatory by the Accession of an Oath; as neither can a subsequentOath avoid a former legitimate Engagement, or annul that Right which another mayclaim thereby; thus a Man would swear in vain not to pay another Person what isjustly due to him: Nor will an Oath be of any Validity, where it appears, that ’twasmade by the Juror upon Supposition of a Thing to be done which was not really so;and that he would not have so sworn, had not he believ’d it to be done; especially if hewere cajol’d into such his Error by the Craft of him to whom the Oath was made: *Neither shall he, who by setting me under panick Fear forces me to take an Oath,have any good Title to require my Performance. Farthermore, an Oath shall have noObligation upon me to do any unlawful Act, or to omit the performing any Dutyenjoyn’d by the Laws of God or Man. Lastly, an Oath cannot alter the Nature orSubstance of the Contract or Promise to which it is annex’d: Hence it cannot oblige toImpossibilities. Again, a Conditional Promise, by the Addition of an Oath, is notchanged into a Positive and Absolute Promise: In like manner, it is no less requisite toPromises confirm’d by Oaths, than to others which are not so confirm’d, that they beaccepted by the other Party: So that he who obtains a Right by any Covenant, mayequally release the Performance of it, whether it was sworn to or= not.



VII.

Punishment. L. N. N.l. 4. c. 2. §12.

VIII.

Strict Interpretation.L. N. N. l. 4. c. 2.§14.

IX.

Sense of an Oath. L.N. N. l. 4. c. 2. §15.

X.

Oaths divided.

But the taking of an Oath has this Effect among Men, for thesake of that Invocation of God which is therein made use of,whose Wisdom no Man’s Cunning can elude, and who suffersnot the Man that mocks Him to escape unpunish’d; that not onlya heavier Punishment is assign’d to him who forswears himself,than to him who barely breaks his Word; but it puts them in mind to avoid all Deceitand Prevarication in the Matters which it is added to confirm.

Not yet that all Oaths are to be consider’d in their greatestLatitude, but that sometimes they must be interpreted in thenarrowest Sense, if so it be, that the Subject-matter seem torequire it: For instance; if the Oath be made to promote somemalicious Design against another, to execute somethingthreatned, and not to perform somewhat promis’d. Neither doesan Oath exclude tacit Conditions and Limitations, provided they are such as plainlyresult from the Nature of the Thing; as suppose, I have sworn to give anotherwhatsoever he shall request, if he ask what it is wicked or absurd for me to grant, I amnot at all obliged. For he who indefinitely promises any Thing to him that desires,before he knows what he is like to ask, presupposes the other will crave nothing butwhat is honest, and morally possible, not Things absurd or mischievous to himself orany Body else.

This is also to be noted, that in Oaths the Sense of all the Wordsthereof is to be such as he shall acknowledge himself to takethem in, who accepts the Oath, that is, to whom the other Partyswears. For the Oath is to be look’d upon to be made for hissake, and not for the sake of the Juror. Whence it is his Part todictate the Form of the Oath, and this to do in Words as plain as is possible, so thathimself may signify in what Sense he conceives them; and the Person swearing mayprofess that he well understands his Meaning, and then those Words are distinctly tobe express’d, that so no room may be left for Cavils or Shuffling.

Oaths may most fitly be distinguish’d according to the Use theyare apply’d to in Human Life. * Some are annex’d to Promisesand Contracts, thereby to procure a strict and religiousObservance of the same; others are apply’d to the Confirmationof any Man’s Assertion concerning a Matter of Fact not altogether evident, and wherethe Truth cannot by other Means be more conveniently search’d out; such are theOaths administred to Witnesses, and those who are privy to another Man’s doings;sometimes also two Adversaries, or Litigants, may, with the Consent of the Judge, orthe Concession of one Party, by taking such or such an Oath put an end to their Law-Suit.



I.

Other Creaturesuseful to Man.

L. N. N. l. 4. c. 3. §2.

II.

Possessionintroduced.

L. N. N. l. 4. c. 4. §5.

III.

Property what. L. N.N. l. 4. c. 4. §2.


Chapter Xii

Duties To Be Observ’D In Acquiring Possession Of Things

Whereas such is the Condition of Man’s Body, that it cannot besupported and preserved from that which would destroy itsFabric, without the Assistance of Things without him; andwhereas by making Use ofother Creatures42 his Life may be render’d much morecomfortable and easie; we may safely gather, that it is the Willof the supreme Moderator of the World, that he be allow’d to apply such otherCreatures to his Service, and that he may even destroy many of them for hisOccasions. * Neither doth this hold, as to Vegetables only, which have no Sense of theLoss of their Beings; but it reaches even the innocent Animals, which though they diewith Pain, yet are kill’d and devour’d by Men for their Sustenance without Sin.

Farther, all these outward Things are understood to have beenleft in the Beginning by God indifferent to the claim of all Men;that is, so that none of them were the Property of this Man ratherthan that. Not but that Men were at liberty to dispose Things so,as should seem requisite to the Condition of Mankind, and theConservation of Peace, Tranquillity and good Order in the World. Hence it was, thatat first, while the Human Race was but of a small Number,† it was agreed, That whatever any one did first seize should behis, and not be taken from him by another; provided however,that he only possesses himself out of the common Store of what is sufficient for hisprivate Service, but not so as to destroy the whole Fund, and so prevent a Stock forfuture Uses. But afterward, when Mankind was multiply’d, and they began to bestowCulture and Labour upon those Things which afforded them Food and Raiment; forthe prevention of Quarrels; and for the sake of good Order, those Bodies or Thingsalso, which produced such Necessaries, were divided among particular Men, andevery one had his proper Share assign’d him, with this general Agreement, Thatwhatsoever in this first Division of Things, was yet left unpossest, should for thefuture be the Property of the first Occupant.* And thus, God so willing, with theprevious Consent, or at least by a tacit Compact of Man, Property, or the Right toThings, was introduced into the World.

Now from Property flows a Right, whereby the Substance, as itwere, of any Thing so belongs to One, that it cannot after thesame manner wholly belong to Another. From whence it follows,that we may at our own Pleasure dispose of those Things whichare our Property, and hinder all other People from the Use ofthem; unless by Agreement they have procur’d from us some special Right. Althoughin Communities it does not always happen that Properties are kept so unmix’d andabsolute, but are sometimes circumscrib’d and limited by the Municipal Laws thereof,



IV.

All things notpossessed.

L. N. N. l. 4. c. 5. §2.

V.

Property twofold. L.N. N. l. 4. c. 6.

VI.

Premier Seisin

L. N. N. l. 4. c. 6. §3,4.

or by Orders and Agreements of Men among themselves.43 But when any certainThing belongs jointly to more Persons than one after the same manner, then it is saidto be common to those several Persons.

But as Things did not all at once become the Possessions ofMen, but successively, and according as the State of Mankindseem’d to require; so it was not necessary neither that everyThing in the World should be claim’d by one Man or other,but, the Peace of Mankind being preserv’d, some Things may,and some Things ought to continue, as at the Beginning, commonto all. For there are Things which are, indeed, very advantagious to Man, but thensince they are inexhaustible, so that every Man may have the Benefit of ’em, and yetno single Person can have the less Use of them, it would be foolish, and to nopurpose, for any one to enclose or lay claim to ’em. Such are the Light of the Sun, theAir, the running Water, and the like: Among which also may be accounted the vastOcean flowing between great Continents, for so much of it as is very far distant fromthe Shore. Because ’tis not only more than sufficient for the promiscuous Use of allMen, but ’tis morally impossible for any single Nation to guard it. * For where aThing is of that Nature, that other Men cannot by any Means be hinder’d from the Useof it, it is not only in vain to divide or lay claim to it, but it is apt to give Occasion forinsignificant Quarrels.

The Methods of acquiring Property are either Original orDerivative: The Original Ways of obtaining Property, are thoseby which the Property of Things was first introduced: TheDerivative Ways are those, by which a Property already settledpasseth from one Man to another. Again, the Original Way ofacquiring Property is twofold; either, first, simple and absolute; as when we obtainDominion and Property over the Body or Substance of the Thing: Or, secondly,primitive and respective; as when we add to a Thing already our own some fartherImprovement and Increase.

After it had been covenanted among Mankind that Things shouldbe appropriated to this or that Man, it was also agreed, Thatwhat Things soever had not fallen within that first Division,should thereafter become the Property of the first Occupant, thatis, of him, * who before any other,should actually seize it with a Design of possessing the same. Sothat even at this time the Original Method of acquiring Propertyin many Things is only Premier Seisin, or the first Occupancy.After this manner Titles are made to desolate Regions, which no Man ever claim’d,which become his who first enters upon ’em with an Intention of making them hisown, provided he cultivate them and assign Limits how far he propounds to occupy.But when any Number of Men jointly possess themselves of any Tract of Land, ’tiscustomary to assign to each Member of the Company a Share, and to account what isleft undivided to belong to the Society in common.† By this first Occupancy also aregain’d all the wild Beasts, Birds, and Fishes living in the Sea, Rivers, or Lakesthereunto appertaining; as well as what by the Sea shall be thrown upon the Shore;



VII.

AccessionalImprovements. L. N.N. l. 4. c. 7.

VIII.

Services.

L. N. N. l. 4. c. 8.

IX.

Derivative Property.L. N. N. l. 4. c. 9.

X.

except particular Laws inhibit the promiscuous Seizure of the same, or assign them tosome certain Claimant. These, if we would make our own, we must actually seize’em, and take ’em into our Possession. By this Occupancy also we may rightfullyacquire Possession of Things whereof the Property which any other Person couldhave is extinct. As for instance, in Things which are cast away with Intention of theOwner not to have ’em any more, or in Things which at first we lost unwillingly, butin Time relinquish’d and forewent. ‡ To which may be added what the Lawyers callTreasure trove, or Money found, the Owner whereof is not known, which goes to theFinder, except by the special Laws of a Country it be otherwise provided.

Moreover, there are many Things capable of being possess’dwhich continue not always in the same State, but soon afterseveral manners increase of themselves or inlarge theirSubstance; to others some external Additions are made; manybring forth Fruit, and not a few by Man’s Labour andWorkmanship admit of Improvement. All these are comprisedunder the Head of Accessional Advantages, and may be divided into two Sorts; forsome without the Help of a Man accrue from Nature alone; while others either whollyor in part are to be attributed to Human Industry.* Concerning both which this is to bethe Rule, To him who is the Owner of the Thing, to the same belong theImprovements and Accessional Advantages; and he who has form’d any Matter of hisown into such or such a Fashion, is Owner of that Form or Fashion.

But Cases often happen, where, either by Contract, or somedifferent Way, another Man may get a Right to receive a certainProfit out of Things that are ours, or to prohibit us the Usingeven of what is our own to every Purpose.These Rights are wont to be call’d Services, and they are of twoSorts, either Personal, where the Advantage from what belongsto another Man comes to the Person immediately; or Real, where such Benefit isreceiv’d from that which is another’s by the Means or Mediation of that which is ours;among which are accounted the Right of receiving Profits, of making use of what isanother’s, of living in such a Place, of commanding the Work of Servants. The RealServices are again subdivided into such as regard the City or the Country; the firstSort are the supporting my Neighbour’s House or Wall which cannot but bear uponmine, affording the Benefits of Lights, not stopping them up, allowing Prospects,carrying off the Rain-Water, and the like: The latter are Liberty of Passage for Men orCattle, Leave to derive or draw Water, or to water Cattle, or to graze ’em for a time,&c. All which Services have been introduced for the Preservation of goodNeighbourhood.

Among the derivative Methods of acquiring Property, some arewhen by the Disposal of the Law Things are devolv’d from oneupon another; others are when Possession is transferr’d by theformer Owner; and this sometimes affecting the same in whole,and sometimes in part.



Inheritance to thosewho die intestate. L.N. N. l. 4 c. 11.

XI.

Children Heirs. l. 4. c.11. §3.

The * Whole of an Estate by the Death of the former Ownergenerally passes by Succession to the next Heir of the Intestate.For it being repugnant to the common Inclinations of Men, andaltogether disserviceable to the Peace of Mankind, that suchPossessions should be accounted as foregone and relinquish’d, and as left to be a Preyto any who shall seize ’em, which such Owner had, while he liv’d, taken so muchCare and Pains to get: Hence, by the Dictates of Reason it has obtain’d among allciviliz’d Nations, that if any Man dies, not having dispos’d of what he had, the sameshall devolve to those, whom, according to the general Inclination of Mankind, hemust be thought to have holden most dear to him. And these, regularly consider’d, arethose who descend from us, as our Children, &c. after them those who are of the sameConsanguinity, according as they are nearly ally’d. And tho’ there may be many, whoeither for having receiv’d Benefits, or from some particular Affection, have a greaterRespect for Persons not at all by Blood related to them, than for the nearest Kin; yetfor Peace sake it is necessary, without taking Notice of the peculiar Case of someFew, rather to follow the universal Propensity of Man, and to observe that Method ofSuccession which is most plain, and least obnoxious to Controversies; which wouldbe very apt to arise, if the Benefactors and Friends of the deceased might be admittedto contest Succession with the next of Kin. So that if a Man has a mind to prefer thoseto whom he stands obliged by Kindnesses, or such as he has on any other account aLove for, he is to make such Disposals openly and expressly.

Whence it follows, that the next Heirs to any Man are hisChildren, which are given by Nature to Parents to be carefullybred and educated, and for whom every Parent is supposed towish a most plentiful Provision, and to design to leavewhatsoever he shall die possess’d of. But by Children are chieflyunderstood such as are born in lawful Matrimony: For to these much Favour is duefrom Reason itself, from the Honour and Decency of the married Life, and from theLaws of all civiliz’d Countries, above the Illegitimate. All which Considerationsobtain yet with these Exceptions, to wit, unless the Father has sufficient Reason not toacknowledge such a one for his Son, or disinherits him for some heinous Wickedness.In the same Case with Children are also to be consider’d Progeny of lower Degrees,as Grand-children, whom the Grand-father is bound to bring up, and who have Rightto share his Inheritance together with the Uncles on both sides; and this, because therecan be no Reason, that the Misery of losing their deceased Parent should beaggravated by being excluded from their Proportion of Inheritance in the Estate oftheir Grand-father. Upon failure of Heirs descendant, ’tis reasonable the Goods ofChildren revolve to their Parents; and that to those who are Fatherless, Motherless,and Childless their Brethren should succeed; and upon Default of these, the next ofKin to the deceas’d ought to inherit. Tho’ in order to prevent Contentions, to which onthis score great Occasions are frequently given, and that this Matter may be settled forthe publick Good, in most Communities the Order of Succession is found to beaccurately stated; and such Directions of the Government it is most safe for everyprivate Man to follow in this case, unless very weighty Causes force him to thecontrary.



XII.

Of Prescription.44 L.N. N. l. 4. c. 12.

XIII.

Last Will. L. N. N. l.4. c. 10.

XIV.

Gift.

Another derivative Method of acquiring Property justifiable byLaw, was by the *Romans call’d Usucaptio, by the Modern’sPrescription; by which he who by honest Means and a just Titlehath gotten Possession of what was really another’s, and hathalso held it for a considerable time, without being disturb’d oroppos’d, obtains the full Property of the Thing thus possess’d, so as to extinguish allthe Right and legal Claim of the former Owner.

The Reasons on which this Right of Prescription is grounded, are, First, The formerProprietor having for so long time neglected claiming what was his, is judgedvoluntarily to have relinquish’d all Right and Title to it; it being reasonable to believe,that in a sufficient Space of time he could not want Opportunities, had he hadInclinations to put in his Claim: Secondly, The Preservation of the Peace of Societydemands, that he who by honest Methods comes to the Possession of what he has,should not be perpetually liable to have taken from him, what became his Purchase bya fair and honest Title; especially it being much more grievous to the presentPossessor to be turn’d out of a Possession honestly acquir’d, than to the formerOwner not to be put into Possession of what he had long since lost the Hopes andExpectations of. The Rules of Natural Equity are sufficient to determine what timeshall suffice to create Prescription in particular Cases: However, it is much better, forthe Prevention of Strife and Controversies, that certain limited times, according toReason and Convenience, should be stated and mark’d out by all Communities,whereby it may be determined what shall make a good Prescription.

The Whole also of an Estate may, by an Act of the formerProprietor, upon his Death be pass’d away by his †Last Will andTestament; for this has been allow’d by most Nations, that forsome kind of Ease to our Thoughts of Mortality, a Man yet alivemay, if Death happen, transfer what he has of outward Goods tosome Person that he loves best. Now whereas in the most ancient Times it seems tohave been customary, that the dying Man upon the Approach of his End openlydeclar’d his Heirs, and with his own Hands deliver’d such or such Portions into theHands of them who were to receive; yet afterwards, for good Reasons, anothermanner of Bequeathing was approved by many People; to wit, that a Man may at anytime, when himself thinks good, make his own Will, and either declare it openly, orkeep it close in Writing; which Will also he may at his Pleasure alter, and of whichthe Heirs he has named or written down cannot make any Use till the Testator bedead. Not but that such Last Wills, of how much Authority soever they are amongMen, yet are to be order’d with Consideration of the Party’s various Relations to Men,and of the Good of the Community; the Neglect whereof has given Occasion for theLaws oftentimes to provide and give Rules for making them; from which prescribedDirections, if any Man depart, he has no Reason to complain, that Regard was not hadto his Last Will.

While Men are yet living, Things are transferr’d by the Act ofthe first Proprietor, either Gratis or Freely; or else by theMediation of some Contract. The former Way of Transferring is



XV.

Forcible Possession.

L. N. N. l. 4. c. 6. §14l. 2. c. 16. §13.

call’d Gift: And of the latter, which is Contracting, we shall speak hereafter.

Sometimes also Things change their Owner without the Consent,and even against the Will of the same Owner; and this is mostlyin Communities, by way of Fine, when sometimes all the Estateof a Convict, sometimes such a Portion only shall be forfeited,and the same shall be given either to a private Person who has suffer’d Wrong, orapplied to the Uses of the Publick.So in War Goods are forcibly taken from the Possessor, whoparts with them very unwillingly, by an Enemy who is too strongfor him, and become the true Property of the Seizer; not but thatthe first Owner has still a Right with a greater Force, whenever he can, to recoverthem, so long as till by subsequent Treaties of Peace he does in effect renounce hisPretences thereto.



I.

We mustconscientiouslyabstain from invadingour NeighboursProperty. L. N. N. l.4. c. 13.

II.

Restitution to bemade if we possesswhat belongs toanother. L. N. N. l. 4.c 13. §2.

III.

Restitution Partconsum’d. L. N. N. l.4. c. 13. §6.


Chapter Xiii

The Duties Which Naturally Result From Man’S Property InThings

Property in Things being established among Men, these Dutiesnaturally arise. * EveryMan is obliged to suffer another, who isnot a declared Enemy, quietly to enjoy whatsoever Things arehis; and neither by Fraud or Violence to spoil, imbezzel, orconvert them to his own Use. Whence it appears, That Theft,Rapine, removing of Boundaries, and the like Crimes, whichtend to the Invading and Incroaching upon other MensProperties, are forbidden.

When any Thing, that belongs to another, falls into our Hands,although it be fairly on our Part, that is, without Trick or Fraudof ours; yet if it belongs to another Person, and we havePossession of it, we are obliged to take care, as far as in us lies,to return it to its right Owner. By this is not to be understood,That when we have procur’d any Thing to our selves by fair andhonest Means, and enjoy it by a rightful Title, we are to makegroundless Doubts and Scruples about the Validity of our Right, and makeProclamation, as it were, That we are in Possession of such a Thing; that, if possibly itshould belong to another Person, the Proprietor might come and demand it. It isenough that, if we come to the Knowledge that what we possess is another Person’s,we then give notice to the Proprietor, that it is in our Possession, and that we are readyto deliver it up to the right Owner. And in this Case, we are not bound to restore it,unless we are repay’d the necessary Charges we have been at in procuring, orpreserving it; which we may justly demand to be reimbursed, or stop the Thing ’tillSatisfaction be made. And the Duty of Restitution of which we are speaking, is soindispensably necessary, that it sets aside all private Ingagements or Contracts to thecontrary, and takes away all Right that may seem to arise from any such privateObligations: As for Instance, Should a Thief trust and deposite with me, upon myPromise of Redelivery, somewhat that he has stollen, I being altogether ignorant ofthe Matter; if after this, the Right Owner appears, the same is to be restor’d to him,and not to the Thief.

But if any Thing belonging to another, which yet we came byfairly and honestly, be wasted and consum’d, ’tis our Duty torestore only so much to the Owner as we have made Profit orAdvantage to our selves from it. All that lies upon us to doherein, being to refund so much as we have gain’d thereby, thatso we may not be the richer by another Man’s undeserved Loss.



IV.

Conclusions. First. L.N. N. l. 4. c. 13. §7.

V.

Second. L. N. N. l. 4.c. 13. §8.

VI.

Third. L. N. N. l. 4 c.13. §9.

VII.

Fourth. L. N. N. l. 4. c13. §10.

VIII.

Fifth. L. N. N. l. 4. c.13. §11.

IX.

Sixth. L. N. N. l. 4. c.13. §12.

X.

Seventh. L. N. N. l. 4.c. 13. §13.

From these Premisses, we may deduce the followingConclusions: 1. A Presumptive Owner, (or one who without anyCovin45 on his Part, becomes the Possessor of what belongs toanother Man) is not obliged to make any Restitution, if the Thingperishes; because neither the Thing it self is in his Power, neitherhas he receiv’d any Gain or Advantage thereby.

2. Such a Presumptive Owner is obliged to make Restitution, notonly of the Thing it self, but also of the Fruits and Profits, whichare in being at the Time. For to whomsoever the Thing reallybelongs, to the same likewise the Profits and Advantages thencearising do accrew. Nevertheless, it is lawful for the Possessor todeduct what Charges he has been at upon the Thing, or upon its Culture andImprovement, by means whereof it has produced those Fruits and Profits.

3. A Presumptive Owner is obliged to make Restitution of theThing, and of the Fruits and Profits of it that are consumed, ifotherwise he would have consum’d as much of his own, and canrecover the Value thereof from him of whom he receivedPossession. For otherwise he would inrich himself, whilst byspending what belongs to another, he spares his own.

4. A Presumptive Owner is not oblig’d to make good the Fruitsand Profits which he might have made of the Thing in hisPossession, but neglected so to do: Because he has not the Thingit self, nor any Thing in Lieu thereof, and he must be consider’d,to have done by it, as he would have done by that which wastruly his own.

5. If a Presumptive Owner makes a Present or Donation of anyThing belonging to another, which was given to himself, he is notbound to restore it; unless he had been obliged in Duty to havegiven the like Value. For in such a Case, he would be a Gainer,by saving what he must have given of his own.

6. If a Presumptive Owner makes over what he hath purchased ofanother Man, upon a valuable Consideration, he is not bound tomake Restitution; unless so far as he has made any Advantage byit.

7. A Presumptive Owner is obliged to restore that which belongsto another, tho’ he bought it upon a valuable Consideration; norcan he demand of the true Owner the Price he paid for it, butonly of him from whom he had it; unless so far as the Chargeswhich the Owner must necessarily have been at, in regaining thePossession of his Right; or that otherwise he did freely promise some Reward for theRecovery.



XI.

Things found. L. N.N. l. 4. c. 13. §15.

Whosoever happens to find any Thing belonging to another,which, ’tis probable, the right Owner lost against his Will, hecannot take it up with an Intention to detain it from him when herequires it. But if the Owner appear not, he may fairly keep ithimself.



I.

Price. L. N. N. l. 5. c.1. §1.

II.

Price twofold. L. N.N. l. 5. c. 1. §3.

III.

Common Value. L. N.N. l. 5. c. 1. §4.


Chapter Xiv

Of The Price And Value Of Things

After Property was introduced into the World, all Things notbeing of the same Nature, nor affording the same Help to HumanNecessities; and every Man not being sufficiently provided withsuch Things as were necessary for his Use and Service, it wasearly brought into Practice among Men to make mutualExchanges of one Thing for another. But because it very often happened, that Thingsof a different Nature and Use were to be transferred; lest either Party should be aLoser by such Exchanging, it was necessary, by a common Agreement or Consentamong themselves, to assign to Things a certain Quantity or Standard, by which thoseThings might be compar’d and reduced to a Balance between each other. The samealso obtained as to Actions, which it was not thought good should be done gratis byone Man for another. And this Quantity or Standard is that which we call Price orValue.

This Price is divided into Common and Eminent; The First is inThings or Actions which come within the compass of ordinaryCommerce, according as they afford either Usefulness or Delightto Mankind. But the other is in Money, as it virtually contains theValue of all Things and Works, and is understood to give themtheir common Estimate.

The natural Ground of the Common Value,* is that †Fitnesswhich any Thing or Action has for supplying, either mediately orimmediately, the Necessities of Human Life, and rendring thesame more easie or more comfortable. Hence it is we call thoseThings which are not of any Use to us, Things of no Value. Thereare nevertheless some Things most useful to Human Life, which are not understood tofall under any determinate Price or Value; either because they are or ought to beexempted from Dominion and Property, or because they are not capable of beingexchanged, and therefore cannot be traded for; or else, because in Commerce they arenot otherwise regarded than as Appendages to be supposed of course to belong toanother Thing. Besides also, when the Law of God or Man places some Actions abovethe Reach of Commerce, or forbids that they should be done for a Reward, it is to beunderstood that the same Laws have set them without the Bounds of Price orValuation. Thus the Upper Regions of the Air, the Sky, and the Heavenly Bodies, andeven the vast Ocean are exempt from Human Property, so that no Rate or Value canbe put upon them. So there is no Rate or Price to be set upon a Freeman, becauseFreemen come not within the Compass of Commerce. Thus, the Lying open to theSun, a clear and wholesome Air, a pleasant Prospect to the Eye, the Winds, Shades,and the like, consider’d separately in themselves, bear no Price, because they cannotbe enjoy’d and purchas’d separately from the Lands they belong to; but yet of what



IV.

Inhansing orDebasing a Price. L.N. N. l. 5. c. 1. §6.

V.

Particular PricesLegal. L. N. N. l. 5. c.1. §8.

Moment they are in raising the Value of Lands and Tenements to be purchas’d, noMan is ignorant. So likewise ’tis unlawful to set any Rate or Price on Sacred Actions,to which any moral Effect is assign’d by Divine Institution; which Crime is call’dSimony. And it is great Wickedness in a Judge to expose Justice to Sale.

Now there are various Reasons, why the Price of one and thesame Thing should be increas’d or diminish’d, and why oneThing should be preferr’d before another, though it may seem tobe of equal or greater Use to Human Life. For here the Necessityof the Thing, or its extraordinary Usefulness, is not alwaysregarded; but, on the contrary, we see those Things are of theleast Account or Value, without which Human Life is least able to subsist; andtherefore, not without the singular Providence of Almighty God, Nature has been verybountiful in providing plentiful Store of those Things. But the Rarity or Scarceness ofThings conduces chiefly to the inhansing their Value; which is the more look’d upon,when they are brought from remote Countries. And hence the wanton Luxury ofMankind has set extravagant Rates upon many Things which Human Life might verywell be without; for Instance, upon Pearls and Jewels. But the Prices of Things,which are of daily Use, are then chiefly rais’d when the Scarcity is join’d with theNecessity or Want of them. The Prices of Artificial Things, besides their Scarceness,are for the most Part inhans’d by the ingenious Contrivance and Curiosity of Art, thatis seen in them, and sometimes by the Fame and Renown of the Artificer, theDifficulty of the Work, the Want of Artists in that Way, and the like. The Prices ofWorks and Actions are rais’d by their Difficulty, Neatness, Usefulness, Necessity, bythe Scarcity, Dignity, and Ingenuity of the Authors of them; and lastly, by the Esteemand Reputation which that Art has gotten in the World. The Contrary to these arewont to diminish the Price of Things. Sometimes again, there may be some certainThing, which is not generally much esteem’d, but only by some particular Persons,out of a peculiar Inclination; for Example, because he, from whom we had it, ismightily belov’d by us, and that it was given as a Token of his particular Affection tous; or because we have been accustom’d thereto, or because it is a Remembrancer ofsome remarkable Accident, or because by the Help thereof, we have escap’d anyextraordinary Danger, or because the Thing was made by Our selves. And this iscalled The Estimate of singular Affection.

But there are other Circumstances likewise to be consider’d instating the Rates and Prices of particular Things. And amongthose indeed, who live in a Natural Independance on any other,the Prices of particular Things are determin’d no otherwise, thanby the Will of the Persons contracting; since they are intirely attheir own Liberty to make over or to purchase what they please,nor can they be controlled in their Dealings by any superior Authority. But in Statesand Governments the Prices of Things are determin’d two several Ways: The First isby an Order from the Magistrate, or some particular Law; the Second is by thecommon Estimate and Judgment of Men, or according as the Market goes, togetherwith the Consent and Agreement of those who contract among themselves. Theformer of these by some is call’d the Legal, the other the Vulgar Price. Where theLegal Rate is fix’d for the sake of the Buyers, as it is for the most part, there it is not



VI.

Vulgar Price. L. N. N.l. 5. c. 1. §9.

VII.

Price eminent. L. N.N. l. 5. c. 1. §12.

VIII.

lawful for the Sellers to exact more; though they are not forbidden, if they will, totake less. So where the Rate of any Labour or Work is tax’d by the Publick Magistratefor the sake of those who have Occasion to hire, it is not lawful for the Workman todemand more, though he be not prohibited to take less.

But the Vulgar Price, which is not fix’d by the Laws, admits of acertain Latitude, within the Compass whereof more or less maybe, and often is, either taken or given, according to theAgreement of the Persons dealing; which yet for the most part,goes according to the Custom of the Market. Where commonlythere is Regard had to the Trouble and Charges which the Tradesmen generally are at,in the bringing home and managing their Commodities, and also after what mannerthey are bought or sold, whether by Wholesale or Retail. Sometimes also on a suddenthe Common Price is alter’d by reason of the Plenty or Scarcity of Buyers, Money, orthe Commodity. For the Scarcity of Buyers and of Money, (which on any particularAccount may happen) and the Plenty of the Commodity, may be a Means ofdiminishing the Price thereof. On the other hand, the Plenty of Buyers and of Money,and the Scarcity of the Commodity, inhanses the same. Thus as the Value of aCommodity is lessen’d, if it wants a Buyer, so the Price is augmented when thePossessor is solicited to sell what otherwise he would not have parted with. Lastly, itis likewise to be regarded, whether the Person offers ready Money, or desires Time forPayment; for Allowance of Time is Part of the Price.

But after Mankind degenerated from their primitive Simplicity,and introduced into the World several kinds of Gaining, it waseasily discern’d, that that Common and Vulgar Price was notsufficient for the dispatching the Business of Men, and for thecarrying on of Commerce, which then daily increas’d. For at firstall Kind of Trading consisted only in Exchanging and Bartering, and the Labours ofothers could no otherwise be valued than by Work for Work, or some Thing given inHand for Recompence. But after Men began to desire so many several Things forConvenience or Pleasure, it was not easie for every one to become Master of Thatwhich another would be willing to take in Exchange, or which might be of equalValue to the Things he wanted from him. And in civiliz’d States or Societies, wherethe Inhabitants are distinguish’d into several Stations, there is an absolute Necessitythere should be different Degrees and Sorts of Men, which, if that simple and plainWay of bartering of Things and Works had been still in Use, could not, or at least, notwithout great Difficulty, support themselves. Hence most Nations, which werepleased with a more sumptuous Way of Living, thought fit, by Publick Consent, to setan Eminent Price or Value upon some Certain Thing, whereby the Common andVulgar Prices of other Things should be measured, and wherein the same should bevirtually contain’d. So that by Means of this Thing, any one may purchase to himselfwhatsoever is to be sold, and easily manage and carry on any Kind of Traffick andBargain.



Gold, Silver, &c. L.N. N. l. 5. c. 1. §13.

IX.

Coin. L. N. N. l. 5. c.1. §14.

For this purpose, most Nations chose to make use of the noblerKind of Metals, and such as were not very Common; becausethese being of a very compacted Substance, they cannot easily beworn out, and admit of being divided into many minute Parts; nor are they less properto be kept and handled; and for the Rarity of ’em are equivalent to many otherThings. Altho’ sometimes for Necessity, and by some Nations for Want of Metals,other Things have been made Use of instead of Money.

Moreover, in Communities, it is only in the Power of the ChiefMagistrates46 to assign the Value of Money; and thence PublickStamps are wont to be put upon them. Nevertheless, in theassigning thereof, respect is to be had to the Common Estimateof the Neighbouring Nations, or of those with whom we haveany Traffick or Commerce. For otherwise, if the State should set too high a Value ontheir Money, or if they should not give it a just and true Alloy, all Commerce withForeign Nations, which could not be carried on by Exchange or Barter alone, wouldbe at a Stand. And for this very Reason, the Value of Money is not rashly to bealter’d, unless a very great Necessity of State require it. Tho’ as Gold and Silver growmore plentiful, the Value of Money, in Comparison to the Price of Land, and Thingsthereon depending, is wont, as it were insensibly and of its self, to grow lower.



I.

Pacts and Contracts.L. N. N. l. 5. c. 2. §1.

II.

General Division ofContracts. L. N. N. l.5. c. 2. §8.

III.

L. N. N. l. 5. c. 4. §1.

IV.


Chapter Xv

Of Those Contracts In Which The Value Of Things Is Pre-supposed; And Of The Duties Thence Arising

A Pact or Agreement in general, is the Consent and Concurrenceof Two or more in the same Resolution. But because oftentimessimple Agreements are contra-distinguish’d to Contracts, theDifference seems chiefly to consist herein, That by Contracts areunderstood such Bargains as are made concerning Things andActions, which come within the compass of Commerce, and therefore suppose aProperty and Price of Things. But such Covenants as are concluded upon, about otherMatters, are called by the common Term of Pacts or Agreements.

* Although even to some of these is promiscuously given the Name of Pacts andContracts.

Contracts may be divided into Gratuitous and Chargeable. Theformer Sort affords gratis some Advantage to one of the Partiescontracting: the latter subjects each of the Parties contracting tosome Charge, or lays upon them some Condition or Obligationequally burdensome to them both; in which Case, nothing isdone or delivered by either Party, but with a Prospect ofreceiving an Equivalent.

Of Gratuitous Contracts, there are three Sorts; a Commission, aLoan, and a Charge.

A Commission is, When any one takes upon himself gratis, and inmere good Will, to transact the Business of his Friend, who requests this Trouble ofhim on the Account of Friendship only. And this may be done two Ways; first, Whenthe Method of transacting the Business is prescribed to the Person who is so kind asto undertake it; and, secondly, When it is wholly left to his Judgment and Discretion.

But as no one would commit the Management of his Affairs to any one but a Friend,and one of whose Honesty and Integrity he has a good Opinion; so he who undertakesthis Trust, ought to be careful not to abuse this Confidence reposed in him; but toexecute it with the greatest Care, and with the utmost Fidelity. But then, on the otherhand, he who has given him this Commission, ought to prevent its being any Loss tohim that executes it, by repaying him any Expences he is at in the Execution of it, andlikewise by satisfying him for any Loss he may suffer in his own Affairs, while hespends his Pains and Time thus in Friendship to him.



Of Loans. L. N. N. l.5. c. 4. §6.

V.

Deposit or Trust. L.N. N. l. 5. c. 4. §7.

When we give to another the free Use of what is ours, withoutany Consideration for the Use of it, this is called a Loan; and theRules to be observed in this Case, are:

1. We must take all possible Care most diligently to look after and preserveintirely the Thing lent us.2. We must put it to no other Uses, nor detain it any longer Time, than theProprietor is willing.3. We must restore it to the Owner intire, and in the same Condition wereceived it; or at least with no other Detriment than what it must of Necessityreceive by the common and ordinary Use of it.4. If after a Thing is lent us for a certain Time, something, not foreseen at theTime it was lent, should fall out, so that the Proprietor wants it before theTime he had lent it us for, we are to restore it without Delay, as soon as everit is required of us.5. If the Thing lent us, comes to any Damage, or is destroyed by anyunforeseen and unavoidable Accident, and not by any Fault of ours, we arenot obliged to make it good, if it be reasonable to think, it would have been inthe same manner damaged or destroyed, had it been in the Proprietor’sCustody, as it was in ours. But if it lay in our Power to have prevented suchDamage or Loss, then we ought to make Restitution to the Proprietor to thefull Value, * since it is very unreasonable in us to make any one lose what ishis, only for being so kind to us, as for our sakes, to deprive himself of theUse of it.

He that lends any Thing to another, lies under no other Obligation to the Person helends it to, but this only; If the Borrower has been at any necessary Charge, more thanwhat the ordinary Use of the Thing requires, in preserving it, then this extraordinaryExpence ought to be made good to him by the Proprietor.

The Third and Last Sort of gratuitous Contracts, is a Charge,Trust, or Deposit: Which is, When we commit any Thing of ourown, or which we have any manner of Title to, or Interest in, tothe Trust and Care of another Person, to keep the same Gratis:And what the Person’s Duty is, to whom the Deposit is made,will easily be understood.

1. The Thing thus trusted in his Hands, must be carefully looked after, nor must anyUse be made of it, without the Knowledge and Consent of the Proprietor, if it can inany ways receive Damage by such using it; as also if it be any Profit or Benefit to theProprietor to have it kept concealed from any one’s Sight: And if the Person intrustedshall take the Liberty of using it, he ought to make good any Damage or Disadvantagethat shall accrue from the Use of it to the Owner. Likewise, it is not just to untye,unseal, or otherwise open any Thing we are intrusted withal, that is sealed or ty’d up,or to take it out of any Box, Chest, or other Thing in which the Owner had inclosedand secured it, when he put it into our Hands.



VI.

Equality in allchargeable Contracts.L. N. N. l. 5. c. 3. §1.

VII.

If an Inequality isdiscover’d after theBargain is made, itmust be redress’d. L.N. N. l. 5. c. 3. §9.

VIII.

2. We ought immediately to restore any Thing deposited with us, as soon as ever theProprietor claims it; at least, unless the Redelivery of it, at such Time it is so claimed,should be a real Prejudice to the Claimant, or to some other Person. But to deny thatwe have it, when the Owner comes to reclaim what he trusted us with, is a mostinfamous Piece of Wickedness, and even more base than Theft it self: And it is yet amore detestable Crime, to withold or disown a miserable Deposit; that is, what is putinto our Hands in the Time of any Misfortune, during the Danger of Fire, or in theMidst of Tumults and Confusions, or the like Calamities.

He who makes the Deposit on his Part, ought to re-imburse, to the Person with whomit is made, all the Charges that he has necessarily laid out upon the Thing deposited,while it continued in his Hands.

In all Contracts that are purely chargeable, and have nothinggainful in them, where the Law or the Market hath fix’d thePrices of Things, a just Equality is to be observed, that is, oneParty ought to receive as much Benefit as the other; and if ithappens, that one receives less than the other, he has a Right todemand the Rest, which if denyed him by the other Party, he is atLiberty to set aside the Contract.

Now to find out and adjust this Equality, it is necessary that the Parties contracting beeach of them alike thoroughly acquainted with the Commodity about which they aretreating, and with the several Qualities of it; and therefore whosoever is going, by wayof Contract, to make over the Property of a Thing to another, is indispensably obligedto expose not only the good Qualities of it, but also, to the best of his Knowledge, theFaults and Defects of it; since otherwise no just Price or real Value of the Thing canbe assign’d. But this is not to be extended to minute and circumstantial Matters, whichaffect not the Substance of the Thing; nor need the Faults already known to the Buyer,be mention’d to him; for if, knowing the Faults, he purchases the Thing, such Defectsdo not annull the Contract, which shall stand good, and the Buyer must be contentedwith the Inconvenience he has consented hereby to bring on himself.

The Equality we have been mentioning, is so absolutelynecessary in all chargeable Contracts, that although in makingsuch a Contract, all the Faults of the Thing contracted for, havebeen fairly expos’d, and nothing demanded more than was reallybelieved to be the just Value of the Thing; yet if afterwards thereappears to have been an Inequality, without any Fault of theContractors, (as suppose some Defect or Blemish layundiscover’d, or there was some Mistake in the Price) it ought to be corrected, and hethat has too much, must make Amends to the Sufferer. In notorious Abuses of thisKind, the Laws of every Country have made Provision for Reparation; but in lesserBreaches of this Duty, they are silent, for the avoiding a Multitude of unnecessarySuits, supposing herein, that every Body will take Care, in his own Concerns, not tobe impos’d upon.



Bartering L. N. N. l.5. c. 5. §1.

IX.

Buying and Selling.L. N. N. l. 5. c. 5. §2.

Now among chargeable Contracts, or Covenants which implysomewhat to be done or given on both Parts, the most ancient,and that whereby Trading and Commerce was carried on beforethe Invention of Money, was Permutation or Bartering, whereby, on each Side,something was given for some other Thing equivalent thereto. Altho’ at this Day,since the Invention of Money, that Sort of Exchange is chiefly practis’d amongMerchants, whereby Things are not simply compar’d between themselves, but theyare first reduced to Money, and afterwards deliver’d as so much Money. Butreciprocal Donation is a different Sort of a Thing from the Contract of Barter; for inthis there is no Necessity that an Equality should be observ’d.

Buying and Selling, is, When for Money the Property of anyThing is acquired, or else such a Right as is equivalent thereto; ofwhich Kind this is the most plain and obvious; When the Buyer,after the Value is agreed upon, immediately pays down the Price,and the Seller thereupon delivers the Commodity. Yet oftentimesthe Agreement is made so, that the Commodity shall be immediately delivered, andthe Price thereof paid at a certain Time. And sometimes the Price is agreed upon, butthe Delivery of the Thing or Commodity is to be within a certain Time limited. Inwhich Case, it seems but Equity, that before the Time be elaps’d, the Seller shouldstand to the Hazard of it; but if, after the Time is elaps’d, the Buyer makes Delay, andneglects the taking it away, then, if the Commodity perishes, the Buyer shall standwholly to the Loss thereof. Now to this of Buying and Selling, are wont to be addedseveral other Kinds of Bargains: As that which is term’d Addictio in diem,47 wherebyany Thing is sold with this Proviso, That it may be lawful for the Seller to accept ofbetter Terms, offered by another within a certain Time. So also the LexCommissoria,48 which is such a Condition in any Contract, as not being perform’dwithin a Time limited, the Bargain becomes void. So likewise any Kind of Recalling,or Privilege of Recanting a Bargain, which is to be either so understood, That if thePrice be laid down within a certain Time limited, or at any Time whatever is offer’d,the Buyer shall be obliged to restore it again to the Seller; or else so, as if the Thing beoffer’d again, the Seller is bound to return back again the Price thereof; or so as if theBuyer be willing to sell the same again, the first Seller should have the Refusal of it,before any other, which is likewise call’d Jus Protimeseos, or the Right of Pre-emption. It is also customary that the Seller should reserve to himself a certain Portionof the Lands which he sells, or some Use or Acknowledgement for the same.

There is another Way of Buying, which they call Per Aversionem,49 when severalThings of different Prices are not valued singly, but at Hap-hazard, and, as it were, inthe Lump.

In that Way of Sale, which is call’d an Auction, the Thing is adjudged to that Personwho, among several Bidders, offers most.

Lastly, There is another Way of Buying, whereby not any certain Thing is bought, butonly the probable Hopes and Expectation thereof which implies something ofChance; so as neither the Buyer, if his Expectation fails him, nor the Seller, though itmuch exceed, hath any Reason to complain.



X.

Hiring and Letting. L.N. N. l. 5. c. 6. §1.

XI.

Things lent. L. N. N.l. 5. c. 7.

Hiring and Letting, is, When the Use of a Thing, or any Labour isgranted to another, upon a certain Consideration.

1. The usual Method is to agree beforehand, how muchshall be received for doing the Thing propos’d; yet if anyone makes no actual Bargain for what he undertakes to perform, or for theUse of any Thing he lends, he is suppos’d to expect so much as the commonCustom allows, and for that to refer himself to the Honesty and Justice of thePerson hiring.2. He who lets out a Thing, ought to take care, that it be in a serviceableCondition, and must therefore be content to undergo all Charges necessary torender it fit for Use. On the other Hand, the Person who hires the Thing,ought to be a good Husband in the Use of it; and if it be lost or damaged byhis Fault, he is responsible for it. And for the same Reason, he who is hired todo any Work, if by his Fault it be spoil’d or damaged, must make it good.3. If a Man be hired only for some transient Business, which does not requirehis constant Attendance to perform, and any Mischance hinders him fromperforming what he undertook, he can have no Title to the Wages agreed for:But if a Man takes another into his Service for a continu’d Time, and heshould, by Sickness or other Misfortune, be hinder’d from doing what heundertook, in common Humanity, he ought neither to be discarded, nor havehis Wages refus’d or abated.4. When any Thing let out happens wholly to perish; from that Time, thePerson hiring is no longer obliged to pay the Wages or Stipend agreed on. Butif the Thing let out, has a known, certain, and determin’d Use assigned to it,for which Use the Owner is obliged to make it fit and serviceable; in thisCase, if by any Misfortune it becomes less fit and proper for this Use, theOwner is obliged to abate of the agreed Price in such Proportion as the Thingfalls short of the design’d Use. Thus, for Instance, I hire a House to dwell in,which my Landlord is obliged to make habitable; if, in this Case, theViolence of a Storm, or my Neighbour’s Fire, should intercept the Use of it, Imay fairly with-hold, in Proportion, so much of the Rent as I suffer by Wantof the Use of the House. But if the Profit or Increase of the Thing farmed outbe uncertain, and have any Thing of Chance attending it, wherein, as a largeIncrease happens to the Advantage of the Hirer, so a small one is to his Loss;in such Case there can be nothing deducted from the Pension in Strictness ofLaw, upon the Account of Barrenness, especially since a Dearth of one Yearmay be recompenced by the Plenty of another: Unless those Accidents, whichprevent the Increase, do but very rarely happen, and the Person hiring bepresumed not to have intended to run any manner of Risk; and if so, it is butequitable that his Rent be abated, when such uncommon and unforeseenAccidents happen.

In a Contract of Things lent, Something is given to a certainPerson upon this Condition, That he be obliged to restore thesame Kind after a certain Time in the same Quantity and Quality.Now those Things which are usually lent, are called Fungibiles,that is, such Things as are capable of being repaid in Kind,



XII.

Partnership. L. N. N.l. 5. c. 8.

XIII.

Contracts uponChance. L. N. N. l. 5.c. 9.

though not in Specie;50 because any Thing of that Kind may so perform the Part ofanother Thing, that he who receives any Thing of that Kind in the same Quantity andQuality, may be said to have receiv’d the same, which he gave. The same Things arelikewise determined and specified by Number, Weight, and Measure, in whichRespect also they are commonly called Quantities, as they are contra-distinct toSpecies. Now a Thing is lent either gratis, so as no more is to be received than wasdeliver’d; or else for some Profit or Advantage, which is call’d Usury; and which isno Ways repugnant to the Law of Nature, provided it be moderate, and proportionableto the Gain, which the other Person makes of the Money or the Thing lent; or to thatGain I my self might have made with the same Money; or to the Loss I suffer by theWant of the present Use of it; or, lastly, that it be not exacted of Poor Men, to whom aThing lent, is sometimes as good as an Alms.

In a Contract of Partnership, Two or more join together theirMoney, Wares, or Works, with an Intention that every one shouldreceive a proportionable Share of the Profit; and if there happensto be any Loss, that likewise must be born ratably51 by eachParty. In which Kind of Society, as all Parties are obliged toFaithfulness and Industry; so no Party must break off the Partnership before the Time,or to the Detriment of his Partner. But when the Time of the Partnership is expired,after the Gain and Loss is allow’d, each Party is to receive what Stock he put in. But ifone Person puts in Money or Goods, and the other contributes his Labour, we mustconsider, after what Manner such a Contribution was made. For when one Man’sLabour is only concern’d about the Managing and Disposing of the other Person’sMoney or Goods, the Shares of the Gain are so to be determin’d, as the Profit of theMoney or Commodity bears Proportion to the Value of the Labour; the Principal stillremaining the Property of him only, who first contributed it. But when any Labour isbestow’d in the Improvement of any Commodity, which is put in by another, he issuppos’d to have such a Share in the Thing it self, as is proportionable to theImprovement it has received. Again, when Men ingage all that they have in any Joint-Stock, as each of the Partners must faithfully bring into the Account the Profits theyhave made; so also every one of them is to be maintain’d out of the Joint-Stockaccording to their Condition. But when the Partnership is broken off, the Division ofthe Goods is made ratably, according as each Party at first brought in; without anyRegard had, by whose Goods any Gain or Loss happened to the Company, unlessbefore-hand it was otherwise agreed.

There are likewise several Contracts which imply a Chance:Amongst which may be reckon’d *Wagers, when the Certaintyof any Event, which is not yet known by either Party, is affirmedby one, and denied by the other, a Certain Value being laid onboth Sides, it is adjudg’d to that Person, to whose Assertion theEvent is found to agree. Hitherto may also be referr’d all Sorts of†Games, wherein we play for any Thing of Value. Among which, those have the leastChance which contain a Trial of Wit, Dexterity, Skill, or Strength. In some of theseSkill and Chance have both a like Share. In others, Chance does chiefly determine theMatter. Altho’ it is the Part of the Civil Magistrate52 to consider how far such Kind ofContracts may be tolerated, as consistent with the publick or private Good: Among



XIV.

Sureties and Pledges.L. N. N. l. 5. c. 10.§8,9, &c.

XV.

Pledge or Mortgage.L. N. N. l. 5. c. 10.§13.

these we may reckon the various Sorts of Lotteries; as either when several Men,having paid for a Thing by Money laid down jointly, refer it to a Decision by Lot,which of them shall have the Whole; or when a Box or Pot of Lots is made Use of,into which a certain Number of Lots or Papers, both Blanks and Prizes are put, and forsome set Price, Liberty is granted of drawing them out, so that the Person drawing,may receive the Prize mark’d upon the Lot. To these Contracts, the receiv’d Methodsof ‡Insurance have some kind of Affinity, which are such Bargains whereby isundertaken the securing from, and making good any Damage, so that the Insurer, for acertain Sum of Money paid down, takes upon himself, and is obliged to satisfie forwhatsoever Losses or Damages any Commodities may undergo in theirTransportation to remote Countries; so that if it shall happen that they be lost, he isbound to pay the Owner the Value of them.

For the rendring of Contracts and Covenants more firm andsecure, Sureties and Pledges are frequently made Use of. * ASurety is, when another Person, who is approv’d of by theCreditor, takes upon himself the Obligation of the principalDebtor; so that unless he makes Payment, the other must make itgood; yet so, that the principal Debtor is obliged to repay him,and save him harmless. And altho’ the Surety cannot stand bound for a greater Sumthan the principal Debtor, yet nothing hinders but that the Surety is more firmly ty’dthan the other, because more is rely’d upon his Credit, than upon that of the principalDebtor. Yet in course, the principal Debtor is to be call’d upon before the Surety,unless he has wholly taken the Obligation upon himself; and such a Person in theCivil Law is commonly called Expromissor, or an Undertaker. Now if several Personsbe Security for one, each of them is to be call’d upon for his Proportion only; unlessby Accident, any one of them becomes insolvent, or is not to be found: For in such aCase, the others must be charged with his Share.

’Tis likewise oftentimes customary for the Debtor to deliver, ormake over to the Creditor for the securing his Debt, some certainThing, which is call’d a Pledge or a Mortgage, until the Debt bepaid. The Intent of which is, not only that the Debtor should beexcited to make Payment out of a Desire of recovering whatbelongs to him; but also that the Creditor should have someProspect how he may be satisfied. And upon this Account, Pledges ought regularly tobe of equal, or greater Value than the Debt it self. Now the Things which may beoffer’d as Pledges, are either Improveable, or not Improveable: As to the former Kind,there is commonly added a Covenant called Pactum αντιχρησεωσ,53 which impowersthe Creditor to enjoy the Fruits and Profits of that Pledge, instead of Interest: Now asto the other Sort, the Lex Commissoria takes Place; which provides, That the Pledgeshall be forfeited to the Creditor, if Payment be not made within a certain Timelimited: And this is no ways unreasonable, when the Pledge is not of greater Valuethan the Debt, together with the Use for the intermediate Time, and provided theOverplus be restored to the Owner. But as the Creditor is obliged to restore the Pledgeupon Payment of the Debt; so in the mean Time he ought to be as careful in thepreserving thereof, as if it were really his own. And when there is no Pactumαντιχρησεωσ, and the Thing be of that Nature, as to receive any Damage by Use, or if



it be any way for the Debtor’s Advantage, he ought not to make Use of it without hisConsent. Now a Mortgage differs from a Pledge in this, That a Pledge consists in theDelivery of the Thing, but a Mortgage, though the Thing be not deliver’d, holds goodby the bare Assignation of a Thing altogether immoveable, from which, Payment notbeing made, the Creditor may receive Satisfaction for his Debt.

And thus what the Duties of Persons contracting are, will plainly appear from the Endand Nature of these Contracts.



I.

Fulfilling or Payment.L. N. N. l. 5 c. 11.

II.

Compensation. L. N.N. l. 5. c. 11. §5.

III.

Release. L. N. N. l. 5.c. 11. §7.


Chapter Xvi

The Several Methods By Which The Obligations Arising FromContracts Are Dissolved

Among the several Ways of discharging Obligations arising fromContracts, and by which likewise the Duties and Offices whichproceed from thence do utterly expire, the chiefest and mostnatural of all, is the Fulfilling or Payment of what was agreedupon. Where, although generally he that is the Debtor, is obligedto make the Payment; yet, if it be perform’d by any other in his Name who contractedthe Obligation, the same is dissolv’d; since ’tis no ways material by what Person theThing is perform’d. Yet with this Proviso, That he who pays for another, without anyIntention of bestowing it upon him, may demand from the same again what he laid outupon his Account. Moreover, Payment must be made to that Person to whom it is due,or else to one whom he has appointed to receive the Debt in his Name. And lastly,That very Thing must be perform’d or paid which was agreed upon, not any Thingelse instead thereof, intire and not mangled, nor in Parcels, nor by Piece-meal; andlikewise at the Place and Time appointed: Altho’ frequently the Courtesie of theCreditor, or the Inability of the Debtor, may be the Occasion of prolonging the Timeof Payment, or receiving a Debt by little Sums at once, or else of accepting of oneThing for another.

Obligations are likewise taken away by *Compensation which isan Adjusting or Balancing the Credit and the Debt, one againstthe other; or when the Debtor is therefore discharged, because’tis manifest that the Creditor himself stands indebted to him forsomething that is of the same Kind, and of the same Value.Especially since in those Things (called Res Fungibiles, that is) which admit of beingrepaid in Kind, tho’ not in Specie, an Equivalent is look’d upon to be the same Thing;and where the Debt is mutual, since I must presently return back as much as I havereceived, for the declining of unnecessary Payments, it seems to be the mostconvenient Way so to order the Matter, that each Party may keep what he has. Now itis evident, that those Things aforementioned, may very properly be brought to aBalance, of which the Time for Payment is either present, or past. But it is not so inother Things or Performances, which are of a different Nature; unless they areestimated on both Sides, and reduced to Money.

An Obligation also ceases when the Thing is released andforgiven by him to whom it was due, and whose Interest it wasthat the Obligation should have been perform’d. And this is doneeither expressly, by some certain Tokens declaring his Consent;as by giving a Discharge, by giving up or cancelling the Bondsand Writings; or else tacitly, if he himself hinders, or is any ways the Occasion thatwhat is owing to him cannot be paid.



IV.

Breaking offmutually. L. N. N. l.5. c. 11. §8.

V.

Falseness on oneSide. L. N. N. l. 5. c.11. §9.

VI.

Case altered. L. N. N.l. 5. c. 11. §10.

VII.

Time. L. N. N. l. 5. c.11. §11.

VIII.

Assignment. L. N. N.l. 5. c. 11. §13.

IX.

DEATH. L. N. N. l. 5.c. 11. §12.

Those Obligations are likewise sometimes dissolved, whichimply some Performance on both Sides, by a mutual Breaking offbefore any Thing on either Side be done in the Contract; unlessthis be expressly forbidden by the Laws. But if any Thing isperformed by one of the Parties, the Obligation in this Casecannot be cancelled, unless he who perform’d his Part, releasesthe other, or has Amends made him some other Way.

Besides, an Obligation is not indeed properly dissolv’d, butrather broken off by the Falseness of either Party; for when theone does not perform what was agreed upon, neither is the otherobliged to make good what he undertook upon a Prospect of theother’s performing. For as to the main Things which are to beperformed in Contracts, the former are always included in thelatter by way of Condition; as if it should be said, I will perform this, if you performthat first.

Obligations likewise cease when that State of Things upon whichthey chiefly depended, is either alter’d by the Party who wasobliged to perform somewhat, or by him to whom, or for whoseSake it was to be done.

Sometimes also Time it self puts an End to some Obligations,whose Duration depends upon a certain precise Day; unless it beprolong’d by the express or tacit Consent of each Party. Yetthere is a Necessity that the Power of exacting the Obligationwithin the Time limited, should stand good.

Any one may make over by Assignment, his Debtor to hisCreditor, provided he approves him, that he, instead of the other,may discharge the Debt. Where indeed there is required theConsent of the Creditor, but not of that third Person who is theDebtor, whom I may turn over without his Knowledge orConsent, to the other Person that is to accept him. For it is no great Matter to whomany Person makes Payment; but from whom the Debt is to be required, is verymaterial.

Lastly, By Death those Obligations expire, which were foundedin the Person of the Deceas’d; for the Subject being gone, theAccidents must necessarily follow, and the Performance ishereby rendred impossible in Nature. Yet oftentimes theObligation that lay on the Deceas’d, is continued to theSurvivors; and this, either when the Survivor takes it upon him of his own Accord topreserve the Reputation of the Deceased, or for other Reasons; or when the Goods ofthe Deceased being made over to the Heir, the Incumbrance goes along with them.



I.

Rules forInterpretationnecessary. L. N. N. l.5. c. 12.

II.

Popular Terms. L. N.N. l. 5. c. 12. §3.

III.

Terms of Art. L. N.N. l. 5. c. 12. §4.

IV.

Conjectures. L. N. N.l. 5. c. 12. §6.

V.

Taken from theSubject Matter. L. N.N. l. 5. c. 12. §7.


Chapter Xvii

Of Meaning, Or Interpretation

As in all Commands and Directions which Men receive fromtheir Superiors, no other Obligation is derived on them fromthence, but such as is conformable to the Will and Intention ofthe Superior; so likewise, when any Man of his own free Will,sets himself under any Obligation, he is bound only to that whichhimself intended, when he entered into that Obligation. But then,because one Man cannot make a Judgment of another Man’s Intention, but by suchSigns and Actions as are apparent to the Senses; hence, therefore, every one, in forohumano,54 is adjudged, To be obliged to that Thing, which he may fairly be supposedto have suggested by a right Interpretation of the outward Signs made by him.Wherefore ’tis of great Use for the true Understanding both of Laws and Covenants,and for the better Discharging the Duties thence arising, that there should be laiddown *Certain Rules for the true Interpretation of Words, especially they being themost common and ordinary Signs whereby we express our Mind and Intention.

Concerning Common and Vulgar Terms, this is the Rule: Wordsare generally to be taken in their most proper and receiv’dSignification, which they have not so much from Analogy andConstruction of Grammar, or Conformity of Derivation, as byPopular Use and Custom, which is the Sovereign Comptrollerand Judge of Speech.

Terms of Art are to be explain’d according to the Definitions ofPersons knowing in each Art. But if those Terms are differentlydefin’d by several Persons, for the avoiding of Disputes, ’tisnecessary that we express in Vulgar Terms, what we mean bysuch a Word.

But for discovering the genuine Meaning of Words, ’tissometimes necessary to make Use of Conjectures, if either theWords in themselves, or the Connexion of them, be ambiguous,and liable to a double Interpretation; or if some Parts of theDiscourse seem to contradict the other, yet so as by a fair andtrue Explanation they may be reconcil’d. For where there is a plain and manifestContrariety, the latter Contract55 vacates the former.

Now Conjectures of the Mind, and the right Meaning thereof inan ambiguous or intricate Expression, are chiefly to be takenfrom the Subject Matter, from the Effects and the Accidents orCircumstances. As to the Matter, this is the Rule: Words aregenerally to be understood according to the Subject Matter. For



VI.

From theConsequences. L. N.N. l. 5. c. 12.§8.

VII.

From Circumstances.L. N. N. l. 5. c. 12.§9.

VIII.

The Reason of theThing. L. N. N. l. 5. c.12. §10.

IX.

Words of variousSignification. L. N. N.l. 5. c. 12. §11.

he that speaks is suppos’d to have always in View the Matter of which he discourses,and therefore agreeably thereunto, the Meaning of the Words is always to be applied.

As to the Effects and Consequences, this is the Rule: WhenWords taken in the literal and simple Sense, admit either of none,or else of some absurd Consequences, we must recede so farfrom the more receiv’d Meaning, as is necessary for the avoidingof a Nullity or Absurdity.

Farthermore, most probable Conjectures may be taken from theCircumstances; because of Consequence every one is presum’dto be consistent with himself. Now these Circumstances are to beconsider’d either as to their Place, or only as to the Occasion ofthem. Concerning the former of these, this is the Rule: If theSense in any Place of the Discourse be express’d plainly andclearly, the more obscure Phrases are to be interpreted by those plain and familiarones. To this Rule there is another nearly related: In the Explaining of any Discoursethe Antecedents and Consequents must be carefully heeded, to which those Thingsthat are inserted between are presum’d to answer and agree. But concerning the latter,this is the Rule: The obscure Expressions of one and the same Man are to beinterpreted by what he has deliver’d more clearly, though it was at another Time andPlace; unless it manifestly appears that he has changed his Opinion.

It is likewise of very great Use for finding out the true Meaning,in Laws especially, to examine into the Reason of that Law, orthose Causes and Considerations which induced the Legislator tothe making thereof; and more particularly when it is evident, thatthat was the only Reason of the Law. Concerning which, this isthe Rule: That Interpretation of the Law is to be followed, whichagrees with the Reason of that Law; and the contrary is to be rejected, if it bealtogether inconsistent with the same. So likewise when the sole and adequate Reasonof the Law ceases, the Law it self ceases. But when there are several Reasons of thesame Law, it does not follow, that if one of them ceases, the whole Law ceases too,when there are more Reasons remaining, which are sufficient for the keeping it still inForce. Sometimes also the Will of the Law-giver is sufficient, where the Reason ofthe Law is conceal’d.

Moreover, it is to be observ’d, That many Words have variousSignifications, one Meaning being of great Latitude, and theother more strict and confin’d; and then the subject Matter issometimes of a favourable Nature, sometimes invidious,sometimes between both or indifferent. Those are favourablewhere the Condition is equal on both Sides, where Regard is hadto the publick Good, where Provision is made upon Transactions already ratified, andwhich tend to the promoting of Peace, and the like. The Invidious, or more distastful,is that which aggrieves one Party only, or one more than the other; that which impliesa certain Penalty; that which makes any Transaction of none Effect, or alters whatwent before; that which promotes Wars and Troubles. That which is between both and



X.

Conjectures extended.L. N. N. l. 5. c. 12.§11.

XI.

Conjectures limited.L. N. N. l. 5. c. 12.§19.

XII.

Emergent Cases. L.N. N. l. 5. c. 12. §21.

Indifferent is, That indeed which makes some Change and Alteration in the formerState of Things, but ’tis only for the sake of Peace. Concerning these, this is the Rule:That those Things which admit of a favourable Construction, are to be taken in thelargest and most comprehensive Meaning; but those Things which are capable of anunpleasing Construction, in the most literal and strictest Sense of the Words.

There are likewise some Kind of Conjectures which areelsewhere to be fetch’d than from the Words, and which are theOccasion that the Interpretation of them is sometimes to beextended, and at other times to be confin’d: Although ’tis moreeasie to give Reasons why the Explanation thereof should beconfin’d and limited, than extended. But the Law may beextended to a Case which is not express’d in the Law, if it be apparent, that theReason which suits to this Case, was particularly regarded by the Law-giver amongstother Considerations, and that he did design to include the other Cases of the likeNature. The Law also ought to be extended to those Cases wherein the Subtlety of illMen have found out Tricks in order to evade the Force of the Law.

Now the Reason why some Expressions deliver’d in generalTerms should be restrain’d, may happen either from the originalDefect of the Will, or from the Repugnancy of some emergentCase to the Will and Intention. That any Person is to bepresum’d not at first to have intended any such Thing, may beunderstood,

1. From the Absurdity, which otherwise would follow from thence; andwhich, ’tis believ’d, no Man in his Wits could design. Hence generalExpressions are to be restrain’d, inasmuch as such Absurdity would thenceotherwise arise.2. FromWant of that Reason which might chiefly cause him to be of thatMind. Hence in a general Expression, those Cases are not comprehended,which do no ways agree with the sole and adequate Reason of the Law.3. FromDefect of Matter, which always he that speaks, is suppos’d to haveconsider’d. And therefore all those general Words are to be regarded withrelation to the same.

Now that an emergent State of Things is repugnant to theIntention of the Person who made the Constitution, may bediscover’d either from Natural Reason, or else from somedeclared Mark and Signification of his Meaning.

The first happens, when we must exclude Equity, if some certain Cases be notexempted from the universal Law. For Equity is the Correcting of what is defective inthe Law by reason of its Universality.

And because all Cases could neither be foreseen, nor set down, because of the infiniteVariety of them; therefore when general Words are apply’d to special Cases, those



XIII.

Exception withRegard to Time. L. N.N. l. 5. c. 12. §23.

Cases are to be look’d upon as exempt, which the Law-giver himself would likewisehave exempted, if he had been consulted upon such a Case.

But we must not have Recourse to Equity, unless there be very sufficient Grounds forit. The Chiefest of which, is, If it be evident, that the Law of Nature would beviolated, if we followed too closely the Letter of that Law.

The next Ground of Exception is, That though it be not indeed unlawful to keep to thevery Words of the Law; yet, if, upon an impartial Consideration, the Thing shouldseem too grievous and burdensome, either to Men in general, or to some certainPersons; or else, if the Design be not of that Value, as to be purchas’d at so dear aRate.

Lastly, There are also some certain Signs of the Legislator’sWill, from whence it may be certainly collected, That a Caseought to be excepted from the general Expressions of the Law; aswhen the Words of the Legislator in another Place, though notdirectly opposite to the Law now supposed to be before us, (forthat would be a Contradiction) yet, by some peculiar Incident,and unexpected Event of Things, happen to oppose it in the present Case; or, whichamounts to the same Thing, When there are two different Laws, which don’t interfere,and which easily may and ought to be observ’d at different Times, but can’t both ofthem be satisfy’d, when by some Chance, they call for our Obedience at the sameInstant: In this Case we must observe some certain Rules to know which Law or Pactought to give Place to the other, where both cannot be fulfill’d.

1. Thatwhich is only permitted gives place to that which is commanded.*2. Thatwhich ought to be done at this present Time, is preferable to thatwhich may be done at any other Time.3.A Law forbidding the doing any Thing, is to be preferr’d before a Lawdirecting the doing any Thing:† Or when an affirmative Precept can’t besatisfy’d but at the Expence of a negative one, then the Performance of theAffirmative, shall be deferr’d or put off, ’till it ceases to clash with that otherwhich is Negative. Thus I am commanded to be charitable, and I amcommanded not to steal: If I have not wherewith to be charitable, unless Isteal to give away, I lye under no Obligation to be charitable at that Time.4. InCovenants and Laws, which are in other respects Equal, that which isparticular and applicable to the present Case, takes Place of that which isGeneral.5. Whentwo Duties happen to interfere at the same Point of Time, that whichis founded upon Reasons more honourable and beneficial is to be preferr’d.6. Whentwo Covenants, one upon Oath, the other not, can’t be perform’dboth together, the former ought to take Place of the latter.*7. AnObligation imperfectly mutual, gives Place to one that is perfectlymutual and binding on both sides.† Thus what I owe upon Contract, ought tobe paid before what is due from me upon free Promise or Gratitude.8. WhatI am obliged to do out of Gratitude, must be preferr’d before what Iam obliged to out of Generosity.



I.

Condition of MAN.L. N. N. l. 1. c. 1. §6,&c.

II.

Twofold. Natural andAdventitious. L. N. N.l. 2. c. 3. §24.

III.

Natural StateThreefold. First.

IV.

Second. L. N. N. l. 2.c. 2. §2.

V.

Third.


Book II

Chapter I

Of The Natural State Of Men

In the next Place, we are to inquire concerning those Dutieswhich are incumbent upon a Man with Regard to that particularState wherein he finds himself ordained by Providence to live inthe World. What we mean by such State, is in general, thatCondition or Degree with all its Relatives, in which Men beingplaced, they are therefore supposed to be obliged to these orthose Performances: And such State, whatever it be, has some peculiar Rights andOffices thereunto belonging.1

The State of Man then may be distinguish’d into either Naturalor Adventitious. The natural State, by the Help of the Light ofnatural Reason alone, is to be considered as Threefold, Either asit regards God our Creator, or as it concerns every single Man asto Himself, or as it affects other Men; concerning all which wehave spoken before.

The Natural State of Man consider’d in the first mention’d Way,is that Condition wherein he is placed by the Creator pursuant tohis Divine Will, that he should be the most excellent Animal inthe whole Creation. From the Consideration of which State, itfollows, That Man ought to acknowledge the Author of hisBeing, to pay Him Adoration, and to admire the Works of His Hands; and moreover,to lead his life after a different Manner from that of the Brutes. So that the contrary tothis State is the Life and Condition of Brutes.

In the second Way we may contemplate the Natural State ofMan, by seriously forming in our Minds an Idea of what hisCondition would be, if every one were left *alone to himselfwithout any Help from other Men.2 And in this Sense, theNatural State is opposed to a Life cultivated by the Industry ofMen.

After the third Way we are to regard the Natural State of Man,according as Men are understood to stand in respect to oneanother, merely from that common Alliance which results fromthe Likeness of their Natures, before any mutual Agreementmade, or other Deed of Man perform’d, by which one could become obnoxious3 tothe Power of another. In which Sense, those are said to live reciprocally in a State ofNature, who acknowledge no common Superior, and of whom none can pretend



VI.

Consider’d again Twoways L. N. N. l. 2. c.2.

VII.

Paternal Authority.

VIII.

Natural Liberty.

Dominion over his Fellow, and who do not render themselves known to each other,either by the doing of good Turns or Injuries. And in this Sense it is, That a NaturalState is distinguish’d from a Civil State, that is, The State of Man in a Community.4

Moreover, the Property of this Natural State may be consider’d,either as it is represented to us notionally and by way of Fiction,or as it is really and indeed. The former is done, when weimagine a certain Multitude of Men at the Beginning to havestarted up into Beings all at once without any Dependence uponone another, as it is fabled of the Cadmean Harvest of Brethren;5or else when we form a Supposition, that all the mutual Ties, by which Mankind areone way or other united together, were now dissolv’d; so that every Man might set upfor himself apart from the Rest, and no one Man should have any other Relation to hisFellow, but the Likeness of their Natures. But the true State of Nature, or that which isreally so, has this in it, that there is no Man who has not some peculiar Obligations tosome other Men, though with all the rest he may have no farther Alliance than thatthey are Men, and of the same Kind; and, beside what arises from thence, he owesthem no Service at all. Which at this Time is the Case of many Kingdoms andCommunities, and of the Subjects of the same, with respect to the Subjects of theother;6 and the same was anciently the State of the Patriarchs, when they liv’dindependently.

It is then taken for manifest, that all Mankind never wereuniversally and at once in the former Natural State; for thoseChildren who were begotten and born of the Protoplasts, or firstcreated Man and Woman, (from whom the whole Human Racederives its Original, as the Holy Scriptures tell us) were subject to the PaternalAuthority. Not but that this Natural State arose afterwards among some People; forMen at first, in order to spread over this wide World, and that they might find forthemselves and their Cattle more spacious Abodes, left the Families of their Fathers,and roaming into various Regions, almost every single Man became himself theFather of a Family of his own; and the Posterity of these again dispersing themselves,that peculiar Bond of Kindred, and the Natural Affections thence arising, by little andlittle were extinct, and no other Obligation remain’d, but that common one, whichresulted from the Likeness of their Natures: ’Till afterwards, when Mankind wasvastly multiplied, they having observ’d the many Inconveniences of that loose Way ofliving, the Inhabitants of Places near one another, by Degrees join’d inCommunities,7 which at first were small, but grew soon greater, either by thevoluntary or forced Conjunction of many which were lesser. And among theseCommunities, the State of Nature is still found, they being not otherwise obliged toeach other, than by the common Tie of Humanity.

Now it is the chief Prerogative of those who are in the State ofNature, that they are subject and accountable to none but Godonly; in which respect also, this is call’d a State of NaturalLiberty, by which is understood, that a Person so circumstancedwithout some antecedent human Act to the contrary, is to be accounted absolutely inhis own Power and Disposition, and above the Controll of all mortal Authority.



IX.

Its Inconveniences.

L. N. N. l. 1. c. 3. §3.

Therefore also any one Person is to be reputed equal to any other, to whom himself isnot subject, neither is that other subject to him.

And farthermore, whereas Man is indued with the Light of Reason, by the Guidancewhereof he may temper and regulate his Actions, it follows, That whosoever lives in aState of Natural Liberty, depends not on any other for the Direction of his Doings; butis vested with a Right to do, according to his own Judgment and Will, any Thing heshall think good, and which is consonant to sound Reason.

And whereas Man, from that universal Inclination which is implanted in all livingCreatures, cannot but, in order to the Preservation of his Person and his Life, and tothe keeping off whatsoever Mischiefs seem to threaten the Destruction thereof, takethe utmost Care and Pains, and apply all necessary Means to that End; and yetwhereas no Man in this Natural State has any superiour Person, to whom he maysubmit his Designs and Opinions, therefore every one in this State makes use of hisown Judgment only, in determining concerning the Fitness of Means, whether theyconduce to his Self Preservation or not. For though he may give ear to the Advice ofanother, yet it is in his Choice, whether he will approve or reject the same. But thatthis absolute Power of Governing himself be rightly managed, it is highly necessary,That all his Administrations be moderated by the Dictates of true Reason, and by theRules of the Law of Nature.

And yet this Natural State, how alluring soever it appears to uswith the Name of Liberty, and flattering us with being free fromall manner of Subjection, was clogg’d, before Men join’dthemselves under Governments,with many Inconveniences; whether we suppose every singleMan as in that Condition, or only consider the Case of thePatriarchs or Fathers of Families, while they liv’d independent. For if you form inyour Mind the Idea of a Man, even at his full Growth of Strength and Understanding,but without all those Assistances and Advantages by which the Wit of Man hasrendred Human Life much more orderly and more easie than at the Beginning; youshall have before you, a naked Creature no better than dumb, wanting all Things,satisfying his Hunger with Roots and Herbs, slaking his Thirst with any Water he canfind, avoiding the Extremities of the Weather, by creeping into Caves, or the like,exposed an easie Prey to the ravenous Beasts, and trembling at the Sight of any ofthem.

’Tis true, the Way of Living among the Patriarchs, might be somewhat morecomfortable, even while they contain’d their Families apart; but yet it could by noMeans be compar’d with the Life of Men in a Community; not so much for the Needthey might have of Things from abroad, which, if they restrain’d their Appetites, theymight perhaps well enough bear withal; as because in that State they could have littleCertainty of any continu’d Security.

And, that we may comprehend all in a few words, In a State of Nature, every Manmust rely upon his own single Power; whereas in a Community, all are on his Side:There no Man can be sure of enjoying the Fruit of his Labour; here every one has it



X.

Uncertainty of theState of Nature.9

L. N. N. l. 1. c. 3. §4.

XI.

Most convenientRemedy inControversies. L. N.N. l. 5. c. 13.

secur’d to him: There the Passions rule, and there is a continual Warfare,accompanied with Fears, Want, Sordidness, Solitude, Barbarity, Ignorance, andBrutishness; here Reason governs, and here is Tranquillity, Security, Wealth,Neatness, Society, Elegancy, Knowledge, and Humanity.

Now though it was the Will of Nature itself,9 that there shouldbe a Sort of Kindred amongst all Mankind, by Virtue of whichthey might be obliged at least not to hurt one another, but ratherto assist and contribute to the Benefit of their Fellows; yet thisAlliance is found to be but of little Force among those who livepromiscuously in a State of Natural Liberty; so that any Man who is not under thesame Laws and Possibilities of Coercion with our selves, or with whom we liveloosely and free from any Obligation in the said State, is not indeed to be treated as anEnemy, but may be look’d upon as a Friend, not too freely to be trusted.And the Reason hereof is, That Man not only is accomplish’d,with an Ability to do Mischief to his Like, but for many Causeshas also a Will so to do: For some, the Pravity of their Natures, Ambition, orCovetousness, incite to make Insults upon other Men; others, though of a meek andmodest Nature, are forced to use Violence either in defending themselves fromimminent Outrages, or by way of Prevention.

Beside that, a Rivalship in the Desire of the same Thing in some; and in others,Competition for Priority in one Quality or other, shall set them at Variance. So that inthis State, ’tis hardly possible but that there should be perpetual Jealousies, Mistrusts,Designs of undoing each other, Eagerness to prevent every one his Fellow, or Hopesof making Addition to his own Strength by the Ruin of others.

Therefore as it is the Duty of every honest Man to be content with his own, and not togive Provocation to his Neighbour, nor to covet that which is his; so also it behoveshim who would be as wary as is needful, and who is willing to take Care of his ownGood, so to take all Men for his Friends, as not to suppose yet but that the same mayquickly become his Enemies; so to cultivate Peace with all Men, as to be providedthough it be never so soon changed to Enmity. And for this Reason, happy is thatCommonwealth, where in Times of Quietness, Consideration is had of Requisites forWar.

Beside, in the Natural State, if any one either will not voluntarilymake good what he has covenanted to do, or does another anInjury, or if upon any other Account some Dispute arise; there’sno Man has Authority to force the naughty Person to perform hisBargain, to cause him to repair the Wrong, or to determine theControversy; as there is in Communities, where I may haverecourse for Help to the Civil Magistrate.

And here, because Nature allows not that upon every Occasion we should betake ourselves to violent Means, even though we are very well satisfy’d in our Consciences ofthe Justice of our Cause; therefore we are first to try, whether the Matter may not becomposed after a milder Way, either by an amicable Reasoning of the Point in



Question between the Parties themselves, or by a free and unconditional Compromise,* or Reference of the Debate to Arbitrators. And these Referees are to manage theMatter with an equal Regard to both Sides, and in giving their Award, they are to havean Eye only to the Merits of the Cause, setting aside all partial Animosity orAffection. For which Reason, it is not best to chuse any Man an Arbitrator in such aCause wherein he shall have greater Hopes of Profit or particular Reputation, if oneParty get the better, rather than the other; and consequently where it is his Interest thatthat Litigant, at what Rate soever, gain the Point. Hence also there ought not to be anyunderhand Bargain or Promise between the Umpire and either of the Parties, by whichhe may be obliged to give his Judgment on the behalf of the same.

Now in this Affair, if the Arbitrator cannot find out the Truth in Fact, neither from theConfessions of the Parties, nor from apparent Writings, nor any other manifestArguments and Signs; he must then inform himself by the Testimonies of Witnesses;whom, though the Law of Nature obliges, especially being usually reinforced by theReligion of an Oath, to speak the Truth; yet it is most safe not to admit the Evidenceof such as are so peculiarly affected to one Party, that their Consciences will be forcedto struggle with the Passions either of Love, Hatred, Desire of Revenge, any violentAffection of the Mind, or else some strict Friendship or Dependance; all, or any ofwhich every Man is not endued with Constancy enough to surmount.

Controversies also are frequently made an end of by the Interposition of the commonFriends of each Party, which to do, is deservedly accounted among the best Actionsof a good Man. For the rest, in the Natural State, when Performances are not madegood by either Side of their own Accord, the other seeks his Due after what mannerhe likes best.



I.

Matrimony. L. N. N.l. 6. c. 1.

II.

Instituted by Nature.

III.

Obligation toMatrimony. L. N. N.l. 6. c. 1. §3.


Chapter Ii

Of The Duties Of The Married State

Among those States of Man which we have call’d Adventitious,or in which a Man is placed by some antecedent human Act,Matrimony obtains the first Place. * Which also is the chiefRepresentation of the Social Life, and the Seed-Plot of Mankind.

And, first, it is certain, That that ardent Propensity found to be inboth Sexes to each other, was not implanted in them by the All-wise Creator, merely that they might receive the Satisfaction of avain Pleasure; for had it been so, nothing could have been theOccasion of greater Brutishness and Confusion in the World; but that hereby MarriedPersons might take the greater Delight in each other’s Company; and that both mightwith the more Chearfulness apply themselves to the necessary Business ofPropagation, and go through those Cares and Troubles which accompany theBreeding and Education of Children. Hence it follows, That all Use of the Partsdestin’d by Nature for this Work, is contrary to the Law Natural, if it tends not to thisEnd. On which Account also, are forbidden all Lusts for a different Species, or for thesame Sex; all filthy Pollutions; and indeed, all Copulations out of the State ofMatrimony, whether with the mutual Consent of both Parties, or against the Will ofthe Woman.

The Obligation under which we lye to contract Matrimony, maybe consider’d either with respect to Mankind in general, or to ourparticular Station and Relation in the World. The Strength of theformer of these, consists in this, That the Propagation ofMankind, neither can nor ought to be kept up by promiscuousand uncertain Copulations, but is to be limited and circumscribedby the Laws of Wedlock, and only to be endeavour’d in a married State: For withoutthis no Man can imagine any Decency or orderly Society among Men, nor anyObservation of the Civil Rules of Life.

But Men singly consider’d, are obliged to enter the Matrimonial State, when aconvenient Occasion offers it self; whereto also not only a mature Age, and an Abilityfor Generation-Work10 is necessary, but there ought beside to be a Possibility oflighting on a Person of the like Condition, and a Capacity of maintaining a Wife, andthe Posterity she shall bring forth; and that the Man may be such a one as is fit tobecome the Master of a Family.

Not still, but that any Man is excepted from this Duty, who betakes himself to a chasteSingle Life, finding his Constitution accommodated thereto, and that he is capable inthat, rather than in the Married State, to be useful to Mankind, or to the



IV.

Matrimonial Contract.L. N. N. l. 6. c. 1. §9.

V.

One Man and oneWoman. L. N. N. l. 6.c. 1. §19.

Commonwealth; especially also, if the Case be so, that there is no Fear of the Want ofPeople.

Between those who are about to take upon themselves theMarried State, a Contract ought, and is wont to intervene, which,if it be Regular and Perfect, consists of these Heads:

First, Because the Man (to whom it is most agreeable to theNature of both Sexes, that the Contract should owe its Original) intends hereby to gethimself Children of his own, not spurious or supposititious; therefore the Womanought to plight her Troth11 to the Man, That she will permit the Use of her Body tono other Man but to him; the same, on the other Hand, being requir’d of the Husband.

And, Secondly, Since nothing can be more flatly contrary to a Social and Civil Life,than a vagabond, desultory, and changeable Way of Living, without any Home, orcertain Seat of his Fortunes; and since the Education of that which is the Off-spring ofboth, is most conveniently taken Care of by the joint Help of both Parents together:And whereas continual Cohabitation brings more of Pleasure and Comfort to a Couplewho are well match’d, whereby also the Husband may have the greater Assurance ofhis Wife’s Chastity; therefore the Wife does moreover ingage her Faith to herHusband, That she will always cohabit with him, and join her self in the strictestBond of Society, and become of the same Family with him. And this mutual Promisemust be supposed to be made from the Husband to her of the like Cohabitation, theNature of this State so requiring.

But because it is not only agreeable to the natural Condition of both Sexes, that theCase of the Husband should be the more Honourable of the two; but that he shouldalso be the Head of the Family, of which himself is the Author; it follows, That theWife ought to be subject to his Direction in Matters relating to their mutual State andto their Household. Hence it is the Prerogative of the Husband, to chuse hisHabitation, and she may not against his Will, wander abroad, or lodge apart.

Yet it does not seem essentially necessary to Matrimony, that the Man should havePower of Life and Death, or of inflicting any grievous Punishment, as neither ofdisposing at his Pleasure of all the Estate or Goods of his Wife: But these Points maybe settled between the Married Couple, by peculiar Agreements, or by the municipalLaws of the Place.

Now tho’ ’tis manifestly repugnant to the Law of Nature, thatone Woman should have more Men than one at once; yet itobtain’d among the Jews of old, and many other Nations, thatone Man might have two or more Wives. Nevertheless, let usallow never so little Weight to Arguments brought from theprimitive Institution of Marriage deliver’d in Holy Writ;* yet itwill appear from right Reason, That ’tis much more decent and fit for one Man to becontent with one Woman. Which has been approved by the Practice of all theChristians through the World, that we know of, for so many Ages.



VI.

Contract perpetual. L.N. N. l. 6. c. 1. §20,21.

VII.

Moral Impediments.L. N. N. l. 6. c. 1.§27.

VIII.

Kindred L. N. N. l. 6.c. 1. §28.

IX.

Ceremony.

X.

Mutual Duties.

Nor does the Nature of this strict Union tell us less plainly, Thatthe Bond of Matrimony ought to be perpetual, and not to beunloosed, but by the Death of one Party; except the essentialArticles of the principal Matrimonial Covenant be violated,either by Adultery, or a wicked and dishonest Desertion. But forill Dispositions, which have not the same Effect with such lewdDesertion, it has obtained among Christians, that a Separation from Bed and Boardshall be sufficient, without allowing any Ingagement in a new Wedlock. And onegreat Reason hereof, among others, is this, That too free a Liberty of Divorce mightnot give Incouragement to either Party to cherish a stubborn Temper; but rather, thatthe irremediable State of each, might persuade both to accommodate their Humours toone another, and to stir them both up to mutual Forbearance. For the rest, if anyessential Article of the Matrimonial Contract be violated, the wronged Party only isdischarged from the Obligation; the same still binding the other, so long as the formershall think good.

Any Man may contract with any Woman, where the Law makesno special Prohibition, if their Age and Constitution of Bodyrender them capable of Matrimony, except some MoralImpediment be in the Way: Presupposing, That he or she is undera Moral Impediment, who are already married to some otherPerson.

And it is accounted a Moral Impediment of lawful Matrimony, ifthe Parties are too nearly allied by Blood or by Affinity. Onwhich Score, even by the Law of Nature, those Marriages areaccounted incestuous and wicked, which are contracted betweenany Persons related in the Ascending or Descending Line. Andfor those in the other transverse Order, as with the Aunt, either on the Father’s orMother’s Side, the Sister, &c. As also those in Affinity, as, with the Mother-in-law,Step-Mother, Step-Daughter, &c. Not only the positive Divine Law, but that of mostciviliz’d Nations, with whom also all Christians agree, does abominate. Nay, theSpecial Laws of many Countries forbid Marriage even in the more remote Degrees,that so they may keep Men from breaking in upon those which are more sacred, bysetting the Barrier at a greater Distance.

Now as the Laws are wont to assign to other Contracts andBargains some Solemnities, which being wanting, the Act shallnot be adjudged of Validity: So also it is in Matrimony, wherethe Laws require, for the sake of Decency and good Order, thatsuch or such Ceremonies be performed. And these, though not injoined by the LawNatural, yet without the same, those who are Subjects of such a Community,12 shallnot consummate a legal Matrimony; or at least, such Contract shall not be allowed bythe Publick to be effectual.

It is the Duty of a Husband to love his Wife, to cherish, directand protect her; and of the Wife to love and honour her Husband,to be assistant to him, not only in begetting and educating his



Children, but to bear her Part in the Domestick Cares. On both sides, the Nature of sostrict an Union requires, That the Married Couple be Partakers as well in the good asill Fortune of either, and that one succour the other in all Cases of Distress; moreover,That they prudently accommodate their Humours to each other; in which Matter, it isthe Wife’s Duty to submit.



I.

Paternal Authority. L.N. N. l. 6. c. 2.

II.

Its FoundationTwofold.

III.

Which Parent hasgreater Right. L. N.N. l. 6. c. 2. §4.


Chapter Iii

Duty Of Parents And Children

From Matrimony proceeds Posterity,13 which is subjected to thePaternal Power,* the most Ancient and the most Sacred Kind ofAuthority, whereby Children are obliged to reverence theirParents, to obey their Commands, and to acknowledge their Pre-eminence.

The Authority of Parents over their Children, hath its chiefFoundation on a Twofold Cause.

First, Because the Law of Nature it self, when Man was made aSociable Creature, injoin’d to Parents the Care of their Children;and lest they should herein be negligent, Nature implanted in them a most tenderAffection for their Issue. Now that this Care may be rightly managed, it is requisitethat they have a Power of ordering the Actions of their Children for their Good;because these, as yet, understand not, for want of Discretion, how to governthemselves.

Next, This Authority is also grounded on the tacit Consent of their Offspring. For itmay fairly be presum’d, that if an Infant, at the Time of its Birth, had the Use of itsReason, and saw that its Life could not be preserv’d without the Care of the Parents,to which must be join’d a Power over it self, it would readily consent to the same, anddesire for it self a comfortable Education from them. And this Power is actually in theParents, then when they breed and nurse up the Child, and form him as well as theycan, that he may become a fit Member of Human Society.

But whereas the Mother concurs no less than the Father to theGeneration of Children, and so the Offspring is common to both,it may be inquir’d, Which hath the greatest Right thereto?Concerning which Point we are to distinguish: For if the Issuewere begotten not in Matrimony, the same shall be rather theMother’s, because here the Father cannot be known, except theMother discover him. Among those also who live in a State of Natural Liberty, andabove Laws, it may be agreed, that the Mother’s Claim shall be preferr’d to that of theFather. But in Communities,14 which have their Formation from Men, theMatrimonial Contract regularly commencing on the Man’s Side, and he becoming theHead of the Family, the Father’s Right shall take Place, so as though the Child is topay the Mother all Reverence and Gratitude, yet is it not obliged to obey her, whenshe bids that to be done which is contrary to the just Commands of the Father. Yetupon the Father’s Decease, his Authority over his Child, especially if not of Age,seems to devolve upon the Mother, and if she marry again, it passes to the Step-Father, he being esteemed to succeed to the Trust and Care of a Natural Father. And



IV.

Paternal Authoritydistinguish’d. L. N.N. l. 6. c. 2. §6.

V.

Childhood. L. N. N. l.6. c. 2. §7.

VI.

Manhood. L. N. N. l.6. c. 2. §11.

VII.

he who shall allow liberal Education to an Orphan or a forsaken Child, shall have aRight to exact filial Obedience from the same.

But that we may handle more accurately the Power of Parentsover their Children, we must distinguish, first, betweenPatriarchs, or Chiefs of independent Families; and such as areMembers of a Community;15 and then betwixt the Power of aFather, as Father, and his Power as Head of his Family. Andwhereas it is injoyn’d by Nature to a Father as such, That hebring up his Children well, in order to render ’em fit Members of Human Society, solong as ’till they can take Care of themselves; hence he has so much Power given himover them, as is necessary for this End; which therefore by no means extends it self soas to give the Parents Liberty to destroy their unborn Offspring, or to cast away or killit when it is born. For though it is true, the Issue is of the Substance of the Parents, yetit is placed in a Human State equal to themselves, and capable of receiving Injuriesfrom them. Neither also does this Authority vest them with the Exercise of a Power ofLife and Death, upon Occasion of any Fault, but only allows them to give moderateChastisement; since the Age we speak of is too tender to admit of such heinousCrimes as are to be punished with Death. But if a Child shall stubbornly spurn at allInstruction, and become hopeless of Amendment, the Father may turn him out of hisown House, and abdicate or renounce him.

Moreover, This Power, thus nicely taken, may be consideredaccording to the diverse Age of Children. For in their earlyYears, when their Reason is come to no Maturity, all theirActions are subject to the Direction of their Parents. Duringwhich Time, if any Estate fall to the young Person, it ought to beput into the Possession, and under the Administration of the Father, so that theProperty be still reserved to the Child; tho’ it may be reasonable enough that theProfits arising therefrom should be the Father’s till the other arrive at Manhood. Soalso any Advantage or Profit that can be made by the Labour of a Son, ought toaccrew to the Parent; since with the Latter lies all the Care of maintaining and ofeducating the Former.

When Children are come to Man’s Estate, when they are induedwith a competent Share of Discretion, and yet continuethemselves a Part of the Father’s Family, then the Power whichthe Father hath comes differently to be considered, either as he isa Father, or as Head of the Family. And since in the former Casehe makes his End to be the Education and Government of his Children, it is plain,That when they are of ripe Years, they are to be obedient to the Authority of theirParents, as wiser than themselves. And whosoever expects to be maintain’d uponwhat his Father has, and afterwards to succeed to the Possession of the same, isobliged to accommodate himself to the Methods of his Paternal Household; theManagement whereof ought to be in his Father’s Power.



Patriarchs Powerabridged. L. N. N. l.6. c. 2. §6.

VIII.

17 Marriage withParents Consent. L.N. N. l. 6. c. 2. §14.

IX.

Piety ever due toParents. L. N. N. l. 6.c. 2. §12.

X.

Education intrusted.L. N. N. l. 6. c. 2. §6.

Patriarchs, or Heads of independent Families, before they join’din Communities,16 acted in many Cases after the manner ofPrinces, in their Houses. So that their Progeny, who continued aPart of their Families, paid the highest Veneration to theirAuthority. But afterward, this Family-Royalty (as well as some other private Rights)was moderated for the Benefit and Order of Communities; and in some Places more,in others less of Power was left to Parents. Hence we see that, in some Governments,Fathers have in Criminal Cases a Power of Life and Death over their Children; but inmost it is not allowed, either for fear Parents should abuse this Prerogative to theDetriment of the Publick, or to the unjust Oppression of those so subjected; or, lestthro’ the Tenderness of Paternal Affection, many Vices should pass unpunished,which might break forth one time or other into publick Mischiefs; or else, that Fathersmight not be under a Necessity of pronouncing sad and ungrateful Sentences.

And as the Father ought not to turn his Child out of his Family,while he stands in Need of Education and Assistance from him,without the most weighty Reasons; so also ought not the Son orDaughter leave the Parent’s House without his Consent. Nowwhereas Children frequently leave their Father’s Family onOccasion of Matrimony; and since it much concerns Parentswhat Persons their Children are married to, and from whom they are to expect Grand-Children; hence it is a Part of filial Duty, herein to comply with the Will of theParents, and not to marry without their Consent. But if any do actually contractMatrimony against their Liking, and consummate the same, such Marriage seems notto be void by the Law of Nature, especially if they intend to be no longer burthensometo their Parents, and that for the rest their Condition be not scandalous. So that if inany Country such Marriages are accounted null and void, it proceeds from theMunicipal Laws of the Place.

But when a Son or Daughter have left their Father’s House, andeither have set up a new Family of their own, or joined toanother; the Paternal Authority indeed ceases, but Piety andObservance is for ever due, as being founded in the Merits of theParents, whom Children can never or very seldom be supposedto requite. Now these Merits do not consist in this only, That aParent is to his Child the Author of Life, without which no Good can be injoyed; butthat they bestow also a chargeable and painful Education upon them, that so they maybecome useful Parts of Human Society; and very often lay up somewhat for them, inorder to make their Lives more easie and comfortable.

And yet, though the Education of Children be a Duty laid uponParents by Nature it self, it hinders not but that, either in Case ofNecessity, or for the Benefit of the Children, the Care thereofmay by them be intrusted with another; so still that the Parentreserve to himself the Oversight of the Person deputed. Hence itis, that a Father may not only commit his Son to the Tutorage of proper Teachers; buthe may give him to another Man to adopt him, if he perceives it will be advantagiousto him. And if he have no other Way to maintain him, rather than he should die for



XI.

Duty of Parents.

XII.

Duty of Children.

Want, he may hire him out for Wages, or sell him into some tolerable Servitude,reserving still a Liberty of redeeming him, as soon as either himself shall be able to beat the Charge, or any of his Kindred shall be willing to do it. But if any Parent shallinhumanly expose and forsake their Child, he who shall take it up and educate it, shallhave the Fatherly Authority over it; so that the Foster Child shall be bound to payfilial Obedience to his Educator.

The Duty of Parents consists chiefly in this, That they maintaintheir Children handsomly, and that they so form their Bodies andMinds by a skilful and wise Education, as that they may becomefit and useful Members of Human and Civil Society, Men ofProbity, Wisdom, and good Temper. So that they may apply themselves to some fitand honest Way of Living, by which they may, as their Genius and Opportunity shalloffer, raise and increase their Fortunes.

On the other Hand, ’tis the Duty of Children to honour theirParents, that is, to give them Reverence, not only in outwardShew, but much more with a hearty Respect, as the Authors notonly of their Lives, but of many other invaluable Benefits to ’em;to obey ’em; to be assistant to ’em to their utmost, especially if they are Aged, or inWant; not to undertake any Business of Moment, without paying a Deference to theirAdvice and Opinion; and, lastly, To bear with Patience their Moroseness, and anyother their Infirmities, if any such be.



I.

Servile State howbegun. L. N. N. l. 6. c.3.

II.

A Temporary Servant.L. N. N. l. 6. c. 3. §4.

III.

A VoluntaryPerpetual Servant.

IV.


Chapter Iv

The Duties Of Masters And Servants

After Mankind came to be multiplied and it was found howconveniently Domestic Affairs might be managed by the Serviceof other Men, * it early became a Practice to take Servants into aFamily, to do the Offices belonging to the House. These at firstprobably offer’d themselves, driven thereto by Necessity, or aConsciousness of their own Want of Understanding; but uponbeing assur’d that they should constantly be supplied with Food and Necessaries, theydevoted all their Services for ever to some Master: And then Wars raging up anddown the World, * it grew a Custom with most Nations, that those Captives, to whomthey granted their Lives, should be made Slaves ever after, together with the Posterityborn of them; though in many Countries, no such Servitude is in Use; but allDomestic Offices are perform’d by mercenary Servants hired for a certain Time.

Now as there are several Degrees, as it were, of Servitude, so thePower of the Masters, and the Condition of the Servants do vary.To a Servant hired for a Time, the Duty of the Master is to payhim his Wages; the other making good on his Part the Work asagreed for: And because in this Contract the Condition of theMaster is the better, therefore such Servant is also to pay Respect to his Masteraccording to his Dignity; and if he have done his Business knavishly or negligently,he is liable to Punishment from him; provided it go not so far as any grievousMaiming of his Body, much less so far as Infliction of Death.

But to such a Servant as voluntarily offers himself to perpetualServitude, the Master is obliged to allow perpetual Maintenance,and all Necessaries for this Life; it being his Duty on the otherhand to give his constant Labour in all Services whereto hisMaster shall command him, and whatsoever he shall gainthereby, he is to deliver to him. In thus doing, however, the Master is to have aRegard to the Strength and Dexterity of his Servant, not exacting rigorously of himwhat is above his Power to do. Now this Sort of Servant is not only subject to theChastisement of his Master for his Negligence, but the same may correct his Manners,which ought to be accommodated to preserve Order and Decency in the Family: Buthe may not sell him against his Will; because he chose this for his Master of his ownAccord, and not another; and it concerns him much with whom he serves. If he havebeen guilty of any heinous Crime against one not of the same Family, he is subject tothe Civil Power, if he live in a Community; but if the Family be independent, he maybe expell’d. But if the Crime be against the same Family, it being independent, theHead thereof may inflict even Capital Punishment.



Captive Slaves L. N.N. l. 6. c. 3. §7

V.

Alienable

VI.

Offspring of Slaves.L. N. N. l. 6. c. 3. §9.

Captives in War being made Slaves, are frequently treated withgreater Severity, something of a hostile Rage remaining towards’em, and for that they attempted the worst upon us and ourFortunes. But as soon as there intervenes a mutual Trust, in order to Cohabitation inthe Family, between the Victor and the vanquish’d Person, all past Hostility is to beaccounted as forgiven: And then the Master does Wrong even to a Servant thusacquir’d, if he allow him not Necessaries for Life, or exercise Cruelty to him withoutCause, and much more if he take away his Life, when he has commited no Fault todeserve it.

It is also the Practice to pass away our Property in such Slaveswho are taken in War, or bought with our Money, to whom weplease, after the same manner as we do our other Goods andCommodities; so that the Body of such Servant is holden to be aChattel of his Master. And yet here Humanity bids us not to forget that this Servant isa Man, however, and therefore ought not to be treated as we do our Moveables, use’em or abuse ’em, or destroy ’em as we list. And when we are minded to part withhim, we ought not to deliver him into the Hands of such, as we know will abuse himinhumanly and undeservedly.

Lastly, ’Tis every where allow’d, That the Progeny of Parentswho are Bondmen, are also in a servile State, and belong asSlaves to the Owner of their Mother. Which is justified by thisMaxim, That whosoever is Proprietor of the Body, is alsoProprietor of whatsoever is the Product thereof, and because suchIssue had never been born, if the Master had executed the Rigor of War upon theParent; and for that the Parent having nothing she can call her own, the Offspringcannot otherwise be brought up but at her Master’s Charge. Whereas, therefore, theMaster afforded such Infant Nourishment, long before his Service could be of any Useto him; and whereas all the following Services of his Life could not much exceed theValue of his Maintenance, he is not to leave his Master’s Service without his Consent.But ’tis manifest, That since these Bondmen came into a State of Servitude not by anyFault of their own, there can be no Pretence that they should be otherwise dealtwithal, than as if they were in the Condition of perpetual hired Servants.



I.

This Inquirynecessary. L. N. N. l.7. c. 1.

II.

Difficulty herein. L.N. N. l. 7. c. 1. §2.

III.

Twofold Inquiry. L.N. N. l. 7. c. 1. §4.

IV.

Natural State.


Chapter V

The Impulsive Cause Of Constituting Communities18

Altho’ there be hardly any Delight or Advantage, but what maybe obtain’d from those Duties, of which we have alreadydiscours’d; it remains, nevertheless, that we inquire into theReasons, why Men, not contenting themselves with thoseprimitive and small Societies, have founded such as are moreample, call’d Communities.19 For from these Grounds andFoundations is to be deduced the Reason of those Duties, which merely relate to theCivil State of Mankind.

Here, therefore, it suffices not to say, That Man is by Natureinclin’d to Civil Society, so as he neither can nor will livewithout it.20 For since, indeed, it is evident, that Man is such aKind of Creature, as has a most tender Affection for himself andhis own Good; it is manifest, that when he so earnestly seeksafter Civil Society, he respects some particular Advantage that will accrue to himthence. And altho’ without Society with his Fellow-Creatures, Man would be the mostmiserable of all Creatures; yet since the natural Desires and Necessities of Mankindmight be abundantly satisfied by those primitive Kind of Societies, and by thoseDuties to which we are obliged, either by Humanity or Contracts; it cannotimmediately be concluded from this natural Society between Man and Man, that hisNature and Temper does directly incline him to the forming of Civil Communities.

Which will more evidently appear, if we consider, WhatCondition Mankind is placed in by the Constitution of CivilCommunities: What that Condition is, which Men enter intowhen they make themselves Members of a Civil State:21 WhatQualities they are which properly intitle them to the Name ofPolitical Creatures, and render them good Patriots or Subjects to the State.22 And,lastly, What there is in their Frame and Constitution, which seems, as we may say, toindispose them for living in a Civil Community.23

Whosoever becomes a Subject,24 immediately loses his NaturalLiberty, and submits himself to some Authority, which is vestedwith the Power of Life and Death; and by the Commands ofwhich, many Things must be done, which otherwise he wouldhave been no ways willing to do, and many Things must be let alone, to which he hada strong Inclination: Besides, most of his Actions must terminate in the Publick Good,which in many Cases seems to clash with Private Men’s Advantage. But Man by hisNatural Inclinations is carried to this, To be subject to no one, to do all Things as helists, and in every thing to consult his single Advantage.



V.

The Qualities of agood Member of theCommunity.

VI.

How Men naturallydisturb and hinder theBenefits of Society.L. N. N. l. 1. c. 3. §4.

VII.

Reason of Change. L.N. N. l. 7. c. 1. §7.

VIII.

But we call him a (Political Animal or) True Patriot, and GoodSubject,25 who readily obeys the Commands of his Governours;who endeavours with his utmost to promote the Publick Good,and next to that, regards his Private Affairs; nay, more, whoesteems nothing profitable to himself, unless the same belikewise profitable to the Community; lastly, who carries himselffairly towards his Fellow-Subjects. But there are few Men to be found, whoseTempers are naturally thus well inclin’d. The greater Part being restrain’d merely forfear of Punishment; and many continue all their Lifetime ill Subjects and unsociableCreatures.

Farthermore, there is no Creature whatsoever more fierce oruntameable than Man, or which is prone to more Vices that areapt to disturb the Peace and Security of the Publick. For besideshis inordinate Appetite to Eating, Drinking, and Venery, towhich Brute Beasts are likewise subject, Mankind is inclin’d tomany Vices, to which Brutes are altogether Strangers; as is theunsatiable Desire and Thirst after those Things which are altogether superfluous andunnecessary, and above all to that worst of Evils, Ambition; also a too lastingResentment and Memory of Injuries, and a Desire of Revenge increasing more andmore by Length of Time; besides an infinite Diversity of Inclinations and Affections,and a certain Stiffness and Obstinacy in every one to indulge his own particularHumour and Fancy. Moreover, Man takes so great Delight in exercising his Crueltyover his Fellow Creatures, that the greatest Part of the Evils and Mischiefs, to whichMankind is obnoxious,26 is wholly owing to the merciless Rage and Violence of Mento each other.

Therefore the genuine and principal Reason which inducedMasters of Families to quit their own natural Liberty, and to formthemselves into Communities,27 was, That they might providefor themselves a Security and Defence against the Evils andMischiefs that are incident to Men from one another.28 For as,next under God, one Man is most capable of being helpful to another; so nothing isable to create Man more Distress, and work him more Mischief, than Man himself;and those Persons have entertain’d a right Conception of the Malice of Men, and theRemedy thereof, who have admitted this as a common Maxim and Proverb; Thatunless there were Courts of Judicature, one Man would devour another. But afterthat, by the Constituting of Communities, Men were reduced into such an Order andMethod, that they might be safe and secure from mutual Wrongs and Injuries amongthemselves, it was by that means provided, that thereby they might the better enjoythose Advantages, which are to be reap’d and expected from one another; to wit, Thatthey might from their Childhood be brought up and instructed in good Manners, andthat they might invent and improve several Kinds of Arts and Sciences, whereby theLife of Man might be better provided and furnished with necessary Conveniences.



Farther Penalties. L.N. N. l. 7. c. 1. §8.

IX.

Advantage ofPenalties. L. N. N. l.7. c. 1. §11.

And the Reason will be yet more cogent for the Constituting ofCommunities, if we consider, that other Means would not havebeen capable of curbing the Malice of Men. For although we areenjoyn’d by the Law of Nature not to do any Injury one to another; yet the Respectand Reverence to that Law is not of that Prevalence as to be a sufficient Security forMen to live altogether quietly and undisturbed in their Natural Liberty.

For although by Accident, there may be found some few Men of that moderate quietTemper and Disposition, that they would do no Injury to others, tho’ they mightescape unpunish’d; and there may be likewise some others, that in some measurebridle in their disorderly Affections thro’ fear of some Mischief that may ensue fromthence; yet, on the contrary, there are a great Number of such, as have no Regard at allto Law or Justice, whenever they have any Prospect of Advantage, or any Hopes, bytheir own subtle Tricks and Contrivances, of being too hard for, and deluding theinjur’d Party. And as it behoves every one, that would take care of his own Safety, toendeavour to secure himself against this Sort of Persons; so no better Care andProvision can be made, than by means of these Communities and Civil Societies. Foraltho’ some particular Persons may mutually agree together to assist each other; yetunless there be some Way found out, whereby their Opinions and Judgments may beunited together, and their Wills may be more firmly bound to the Performance of whatthey have agreed upon, it will be in vain for any one to expect and rely upon anycertain Succour and Assistance from them.

Lastly, Altho’ the Law of Nature does sufficiently insinuate untoMen, that they who do any Violence or Injury to other Men, shallnot escape unpunished; yet neither the Fear and Dread of aDivine Being, nor the Stings of Conscience are found to be ofsufficient Efficacy to restrain the Malice and Violence of allMen.29 For very many Persons, thro’ the Prejudice of Customand Education, are, as it were, altogether deaf to the Force and Power of Reason.Whence it comes to pass, that they are only intent upon such Things as are present,taking very little Notice of those Things which are future; and that they are affectedonly with those Things which make a present Impression upon their Senses. But sincethe Divine Vengeance is wont to proceed on but slowly; from whence many ill Menhave taken Occasion to refer their Evils and Misfortunes to other Causes; especiallysince they very often see wicked Men enjoy a Plenty and Abundance of those Thingswherein the vulgar Sort esteem their Happiness and Felicity to consist. Besides, theChecks of Conscience, which preceed any wicked Action, seem not to be of thatForce and Efficacy, as that Punishment which follows the Commission of the Fact,when, that which is done, cannot possibly be undone. And therefore the most presentand effectual Remedy, for the quelling and suppressing the evil Desires andInclinations of Men, is to be provided by the Constituting of Civil Societies.



I.

Conjunctionnecessary. L. N. N. l.7. c. 2.

II.

Numbers Necessary.L. N. N. 1. 7. c. 2. §2.

III.

Agreement to beperpetual. L. N. N. 1.7. c. 2. §3.


Chapter Vi

Of The Internal Frame And Constitution Of Any State OrGovernment

The next Enquiry we are to make, is upon what Bottom CivilSocieties have been erected, and wherein their InternalConstitution does consist. Where, in the first Place, this ismanifest, That neither any Place, nor any Sort of Weapons, norany Kind of brute Creatures can be capable of affording anysufficient and safe Guard or Defence against the Injuries towhich all Men are liable, by reason of the Pravity of Mankind: From such Dangers,Men alone can afford an agreeable Remedy by joining their Forces together, byinterweaving their Interests and Safety, and by forming a general Confederacy fortheir mutual Succour; that therefore this End might be obtain’d effectually, it wasnecessary that those who sought to bring it about, should be firmly joined togetherand associated into Communities.

Nor is it less evident, that the Consent and Agreement of Two orThree particular Persons cannot afford this Security against theViolence of other Men: Because it may easily happen, that such aNumber may conspire the Ruin of those few Persons, as may beable to assure themselves of a certain Victory over them; and ’tisvery likely they would with the greater Boldness go about such an Enterprise, becauseof their certain Hopes of Success and Impunity. To this end therefore it is necessary,that a very considerable Number of Men should unite together, that so the Overplus ofa few Men to the Enemies, may not be of any great Moment to determine the Victoryto their Side.

Among those many, which join together in order to this End, it isabsolutely requisite that there be a perfect Consent andAgreement concerning the Use of such Means as are mostconducive to the End aforesaid. For even a great Multitude ofMen, if they do not agree among themselves, but are divided andseparated in their Opinions, will be capable of effecting but verylittle; Or, although they may agree for a certain Time, by reason of some presentMotion or Disposition of the Mind; yet as the Tempers and Inclinations of Men arevery variable, they presently afterwards may divide into Parties. And although byCompact they engaged among themselves, that they would employ all their Force forthe common Defence and Security; yet neither by this Means is there sufficientProvision made, that this Agreement of the Multitude shall be permanent and lasting:But something more than all this, is requisite, to wit, That they who have once enteredinto a mutual League and Defence for the Sake of the Publick Good, should bedebarr’d from separating themselves afterwards, when their private Advantage mayseem any ways to clash with the Publick Good.30



IV.

Faults herein howremedied. L. N. N. 1.7. c. 2. §5.

V.

Union of Wills.

VI.

And of Forces.

VII.

Other Requisites.Two Covenants. TheFirst. L. N. N. 1. 7. c.2. §6.

VIII.

Constitution.

But there are two Faults, which are chiefly incident to HumanNature, and which are the Occasion that many who are at theirown Liberty, and independent one upon the other, cannot longhold together for the promoting of any Publick Design. The Oneis the Contrariety of Inclinations and Judgments in determiningwhat is most conducive to such an End; to which in many thereis join’d a Dulness of Apprehending which, of several Means propos’d, is moreadvantagious than the rest; and a certain Obstinacy in defending whatsoever Opinionwe have embraced. The other is a certain Carelesness and Abhorrence of doing thatfreely, which seems to be convenient and requisite, whensoever there is no absoluteNecessity, that compels them, whether they will or no, to the Performance of theirDuty. The First of these Defects may be prevented by a lasting Uniting of all theirWills and Affections together. And the Latter may be remedied by the constituting ofsuch a Power as may be able to inflict a present and sensible Penalty upon such asshall decline their Contributing to the Publick Safety.

The Wills and Affections of a great Number of Men cannot beunited by any better means, than when every one is willing tosubmit his Will to the Will of one particular Man, or oneAssembly of Men; so that afterwards whatsoever he or they shallwill or determine concerning any Matters or Things necessary for the Publick Safety,shall be esteemed as the Will of All and every particular Person.31

Now such a Kind of Power, as may be formidable to All, can byno better means be constituted among a great Number of Men,than when All and every one shall oblige themselves, to makeUse of their Strength after that Manner, as he shall command, towhom All Persons must submit and resign the Ordering and Direction of their unitedForces: And when there is an Union made of their Wills and Forces, then thisMultitude of Men may be said to be animated and incorporated into a firm and lastingSociety.32

Moreover, that any Society may grow together after a regularManner, there are required Two Covenants, and One Decree, orConstitution.33 For, first, Of all those many, who are supposedto be in a Natural Liberty, when they are joined together for theforming and constituting any Civil Society, every Person entersinto Covenant with each other, That they are willing to come intoone and the same lasting Alliance and Fellowship, and to carry on the Methods oftheir Safety and Security by a common Consultation and Management amongthemselves: In a Word, That they are willing to be made Fellow Members of the sameSociety.34 To which Covenant, it is requisite, that All and singular Persons doconsent and agree, and he that does not give his Consent, remains excluded from suchSociety.35

After this Covenant, it is necessary, that there should be aConstitution agreed on by a publick Decree, setting forth, whatForm of Government is to be pitched upon. For ’till this be



IX.

The other covenant.L. N. N. 1. 7. c. 2. §8.

X.

A Communitydefined. L. N. N. 1. 7.c. 2. §13.

XI.

How subjected toOne. L. N. N. 1. 7. c.2. §14.

XII.

How to many. L. N.N. 1. 7. c. 2. §15.

determined, nothing with any Certainty can be transacted, which may conduce to thepublick Safety.

After this Decree concerning the Form of Government, there isOccasion for another Covenant, when he or they are nominatedand constituted upon whom the Government of this RisingSociety is conferr’d; by which Covenant the Persons that are togovern, do oblige themselves to take Care of the CommonSafety, and the other Members do in like manner oblige themselves to yieldObedience to them; whereby also all Persons do submit their Will to the Will andPleasure of him or them, and they do at the same Time convey and make over to himor them the Power of making Use of, and applying their united Strength, as shall seemmost convenient for the Publick Security. And when this Covenant is duly and rightlyexecuted, thence, at last, arises a complete and regular Government.

A Civil Society and Government, thus constituted, is look’dupon as if it were but One Person, and is known anddistinguished from every particular Man by one Common Name;and it has peculiar Rights and Privileges, which neither each Onealone, nor Many, nor All together can claim to themselves,without him, who is the Supreme, or to whom the Administrationof the Government is committed.36 Whence a Civil Society is defined to be, OnePerson morally incorporated, whose Will containing the Covenants of many unitedtogether, is looked upon and esteemed as the Will of All; so that he is in a Capacity ofmaking Use of the Strength and Power of every particular Person for the CommonPeace and Security.

Now the Will and Intention of any Constituted Government orSociety exerts it self, as the Principle of Publick Actions, eitherby one particular Person, or by one Council or Assembly,according as the Power of Managing Affairs is conferr’d on him,or on such an Assembly. Where the Government of the State isin the Power of One Man, the said Society is supposed to will,whatsoever shall be the Will and Pleasure of that Man, allowing that he is in hisperfect Senses; and it being about those Affairs which only relate to Government.37

But when the Government of a State is conferr’d upon a Council,consisting of several Men, every one of them retaining his ownNatural Free-Will, that regularly is esteemed to be the Will andPleasure of the State, whereto the Major Part of the Persons, ofwhom the Council is composed, does give their Assent; unless itbe expressly declared, how great a Part of the Council consenting is required torepresent the Will of the Whole. But where two differing Opinions are equallybalanced on both sides, there is nothing at all to be concluded upon, but the Affair stillremains in its former State. When there are several differing Opinions, that shallprevail which has more Voices than any of the other differing Opinions, provided somany concur therein, as otherwise might have represented the Will and Pleasure ofthe Whole, according to the Publick Constitutions.



XIII.

Various Forms ofGovernment. L. N. N.1. 7. c. 2. §20.

XIV.

Government fromGOD. L. N. N. 1. 7. c.3.

A State or Government being thus constituted, the Party onwhom the Supreme Power is conferr’d, either as it is a singlePerson, or a Council consisting of select Persons, or of All inGeneral, is called a Monarchy, an Aristocracy, or a Free State;the rest are looked upon as Subjects or Citizens, the Word beingtaken in the most comprehensive Sense: Although, in Strictnessof Speech, some call only those Citizens, who first met and agreed together in theforming of the said Society, or else such who succeeded in their Place, to wit, House-holders or Masters of Families.

Moreover, Citizens are either Originally so; that is, such as are born in the Place, andupon that Account claim their Privileges: Or else Adscititious; that is, such as comefrom Foreign Parts.

Of the first Sort, are either those who at first were present and concerned in theforming the said Society, or their Descendants, whom we call Indigenae, or Natives.

Of the other Sort are those who come from Foreign Parts in order to settle themselvesthere. As for those who come thither only to make a short Stay, although they are forthat Time subject to the Laws of the Place; nevertheless, they are not looked upon asCitizens, but are called Strangers or Sojourners.

Not that what we have delivered concerning the Original of CivilSocieties, does any ways hinder, but that Civil Government maybe truly said to be from GOD. For it being his Will, that thePractices of Men should be ordered according to the Law ofNature; and yet upon the Multiplication of Mankind, HumanLife would have become so horrid and confused, that hardly anyRoom would have been left for the same to exert its Authority; and seeing theExercise thereof would be much improved by the Institution of Civil Societies;therefore (since He who commands the End, must be supposed to command likewisethe Means necessary to the said End) God also, by the Mediation of the Dictates ofReason, is to be understood antecedently to have willed, That Mankind, when theywere multiplyed, should erect and constitute Civil Societies, which are, as it were,animated with a Supreme Authority. The Degrees whereof He expressly approves inDivine Writ, ratifying their Divine Institution by a peculiar Law, and declaring, ThatHimself takes them into his especial Care and Protection.



I.

L. N. N. l. 7. c. 4.

II.

Will of the Supremeto be made known. L.N. N. l. 7. c. 4. §2.

III.

Penalty. L. N. N. l. 7.c. 4. §3.


Chapter Vii

Of The Several Parts Of Government38

What are the Constituent Parts of Supreme Power, and by whatMethods it exerts its Force in Civil Societies, may easily begather’d from the Nature and End of the said Societies.

In a Civil Society all Persons are supposed to have submittedtheir Will to the Will and Pleasure of the Governours, in suchAffairs as concern the Safety of the Publick, being willing to dowhatsoever they require. That this may be effected, it isnecessary, that the Governors do signify to those who are to begoverned, what their Will and Pleasure is concerning suchMatters. And this they do, not only by their Commands, directed to particular Personsabout particular Affairs; but also by certain general Rules, whence all Persons may, atall Times, have a clear and distinct Knowlege of what they are to do or omit. Bywhich likewise it is commonly defined and determined what ought to be looked uponto be each Man’s Right and Property, and what does properly belong to another; *what is to be esteemed Lawful, and what Unlawful in any Publick Society; whatCommendable, or what Base; what every Man may do by his own Natural Liberty, orhow every one may dispose and order his own particular Rights towards theAdvancement of the common Peace and Tranquillity: In fine, what, and after whatmanner, every one by Right may lay Claim to from another. For it conduces verymuch to the Peace and Prosperity of any Civil Society, that all these Things should beclearly and plainly laid down and determined.

Moreover, this is the Chief End of Civil Societies, That Men, bya mutual Agreement and Assistance of one another, might besecured against the Injuries and Affronts, which may, and veryoften do, befall us by the Violence of other Men. Now that thisEnd may the better be obtained by those Men, with whom we arelink’d together in the same Society; it is not sufficient, that they should mutuallyagree among themselves not to injure one another: Nor is it enough, that the bare Willand Pleasure of the Supreme Magistrate should be made known to them; but ’tislikewise requisite, that there should be a certain Fear and Dread of Punishment, and aPower and Ability of inflicting the same. Which Punishment or Penalty, that it may besufficient for this End, is to be so ordered, that there may plainly appear a greaterDamage in violating the Laws, than in observing them; and that so the Sharpness andSeverity of the Penalty, may outweigh the Pleasure and Advantage gotten, or expectedby doing the Injury: Because it is impossible but that of two Evils Men should chusethe least. For although there are many Men who are not restrained from doing Injuriesby any Prospect of Punishment hanging over their Heads; yet that is to be lookedupon as a Case that rarely happens, and such as, considering the present Conditionand Frailty of Mankind, cannot be wholly avoided.



IV.

Controversies. L. N.N. l. 7. c. 4. §4.

V.

Power of Peace andWar. L. N. N. l. 7. c.4. §5.

VI.

Publick Officers. L.N. N. l. 7. c. 4. §6.

VII.

Taxes. L. N. N. l. 7. c.4. §7.

Because also it very often happens, that many Controversies doarise about the right Application of the Laws to some particularMatters of Fact, and that many Things are to be nicely andcarefully considered in order to determine whether such a Factmay be said to be against Law; therefore, in order to theEstablishment of Peace and Quietness amongst the Subjects, it is the Part of thesupreme Governour to take Cognizance of, and determine the Controversies arisingbetween Subject and Subject, and carefully to examine the Actions of particularPersons, which are found to be contrary to Law, and to pronounce and execute suchSentence as shall be agreeable to the same Law.

But that those, who by mutual Agreement have constituted aCivil Society, may be safe against the Insults of Strangers, thesupreme Magistrate has Power to assemble, to unite into a Body,and to arm, or, instead of that, to list as many Mercenaries asmay seem necessary, considering the uncertain Number andStrength of the Enemy, for the maintaining the publick Security;and it is likewise intirely left to the Discretion of the same Magistrate, to make Peacewhenever he shall think convenient.

And since, both in Times of Peace and War, Alliances and Leagues with other Princesand States are of very great Use and Importance, that so the different Advantages ofdivers States and Governments may the better be communicated to each other, and theEnemy, by their joint Forces, may be repulsed with the greater Vigour, or be moreeasily brought to Terms. It is also absolutely in the Power of the supreme Magistrateto enter into such Leagues and Treaties as he shall think convenient to each Occasion;and to oblige all his Subjects to the Observation of them, and at once to derive andconvey down to the whole Civil Society, all the Benefits and Advantages thencearising.

Seeing also the Affairs of any considerable State, as well in Timeof War as Peace, cannot well be managed by one Person, withoutthe Assistance of subordinate Ministers and Magistrates, it isrequisite that able Men should be appointed by the supremeMagistrate, to decide and determine in his Room39 theControversies arising between Subject and Subject; to inquire into the Councils of theNeighbouring Princes and States; to govern the Soldiery; to collect and distribute thepublick Revenue: and, lastly, in every Place to take special Care of the CommonGood. And from each of these Persons the supreme Magistrate may, and ought toexact the Performance of their Duty, and require an Account of their Behaviour intheir respective Stations.

And because the Concerns of any Civil Society can, neither inTime of War nor Peace, be managed without Expences, thesupreme Authority has Power to compel the Subjects to providethe same. Which is done several Ways; either when theCommunity appropriates a certain Portion of the Revenues of theCountry they possess, for this Purpose; or when each Subject contributes something



VIII.

Publick Doctrines. L.N. N. l. 7. c. 4. §8.

IX.

All these Partsconcentered.

out of his own Estate, and, if Occasion requires, gives also his personal Help andAssistance; or when Customs are set upon Commodities imported and exported, (ofwhich the first chiefly affects the Subjects, and the other Foreigners;) or, lastly, whensome moderate Tax is laid on those Commodities which are spent.

To conclude: Since the Actions of each Person are governed byhis own particular Opinion, and that most People are apt to passsuch a Judgment upon Things as they have been accustomedunto, and as they commonly see other People judge; so that veryfew are capable of discerning what is just and honest; upon thisAccount therefore it is expedient for any Civil Society, that such Kind of Doctrinesshould be publickly taught, as are agreeable to the right End and Design of suchSocieties, and that the Minds of the Inhabitants should be seasoned betimes with thesePrinciples. * It does therefore belong to the supreme Magistrate to constitute andappoint fitting Persons to inform and instruct them publickly in such Doctrines.

Now these several Parts of Government are naturally soconnected, that to have a regular Form suitable to any civilSociety, all these Parts thereof ought radically to center inOne.40 For if any Part be wanting, the Government is defective,and uncapable of procuring its End. But if these several Parts bedivided, so that some of them be radically here, and others there, hence of Necessitywill follow an irregular and incoherent State of Things.



I.

Diverse Forms. L. N.N. l. 7. c. 5.

II.

Regular and Irregular.

III.

Three Regular Forms.L. N. N. l. 7. c. 5. §2.

IV.

Forms compar’d. L.N. N. l. 7. c. 5. §9.

V.

A distemper’d StateL. N. N. l. 7. c. 5.§10.


Chapter Viii

Of The Several Forms Of Government41

The Supreme Power consider’d either as it resides in a SingleMan, or in a Select Council or Assembly of Men, or of All inGeneral, produces diverse Forms of Government.

Now the Forms of Government are either Regular or Irregular.Of the first Sort are those where the supreme Power is so unitedin one particular Subject, that the same being firm and intire, itcarries on, by one supreme Will, the whole Business ofGovernment. Where this is not found, the Form of Government must of Necessity beIrregular.

There are Three Regular Forms of Government:42 The First is,When the supreme Authority is in One Man; and that is call’d aMonarchy. The Second, When the same is lodged in a selectNumber of Men; and that is an Aristocracy. The Third, When itis in a Council or Assembly of Free-holders and PrincipalCitizens; and that is a Democracy. In the First, he who bears the supreme Rule, isstil’d, A Monarch; in the Second, the Nobles; and in the Third, The People.

In all these Forms, the Power is indeed the same. But in oneRespect Monarchy has a considerable Advantage above the rest;because in order to deliberate and determine, that is, actually toexercise the Government, there is no Necessity of appointing andfixing certain Times and Places; for he may deliberate anddetermine in any Place, and at any Time; so that a Monarch is always in a Readinessto perform the necessary Actions of Government. But that the Nobles and the People,who are not as one natural Person, may be able so to do, it is necessary that they meetat certain Times and Places, there to debate and resolve upon all publick Business. Forthe Will and Pleasure of a Council, or of the People, which results from the Majorityof Votes concentring, can no otherwise be discover’d.

But, as it happens in other Matters, so in Governments also itfalls out, That the same may be sometimes well, and at othertimes scurvily and foolishly managed. Whence it comes to pass,that some States are reputed Sound, and others Distemper’d. Yetwe are not, on Account of these Imperfections, to multiply theseveral Species or Forms of Government, imagining that theseseveral Defects make different Sorts of Governments; for these Vices or Defects,though different in themselves, do not, however, either change the Nature of theAuthority it self, or the proper Subject in which it resides. Now these Defects or Vicesin Government, do sometimes arise from the Persons who administer the



VI.

Monarchy L. N. N. l.7. c. 5. §10.

VII.

Aristocracy.

VIII.

Men in a Democracy.

IX.

Men in anyGovernment.

X.

Faults in aConstitution.

XI.

Government; and sometimes they arise from the Badness of the Constitution it self.Whence the First are styl’d, Imperfections of the Men, and the Latter, Imperfectionsof the State.

The Imperfections of the Men in a Monarchy are, when he whopossesses the Throne, is not well skilled in the Arts of Ruling,and takes none, or but a very slight Care for the publick Good,prostituting the same to be torn in pieces and sacrificed to theAmbition or Avarice of evil Ministers; when the same Personbecomes terrible by his Cruelty and Rage; when also he delights, without any realNecessity, to expose the Publick to Danger; when he squanders away, by his Luxuryand profuse Extravagance, those Supplies which were given for the Support of thePublick; when he heaps up Treasure unreasonably extorted from his Subjects; whenhe is Insolent, Haughty, or Unjust; or guilty of any other scandalous Vice.

The Imperfections of the Men in an Aristocracy are, When byBribery and base Tricks, Ill Men and Fools get into the Council,and Persons much more deserving than they, are excluded: Whenthe Nobles are divided into several Factions: When theyendeavour to make the common People their Slaves, and to convert the publick Stockto their private Advantage.

The Imperfections of the Men in a Democracy are, when sillyand troublesome Persons stickle for their Opinions with greatHeat and Obstinacy; when those Excellencies,43 which arerather beneficial than hurtful to the Common-wealth, aredepress’d and kept under; when, thro’ Inconstancy, Laws are rashly establish’d, andas rashly annull’d, and what but just now was very pleasing, is immediately, withoutany Reason, rejected; and when base Fellows are promoted in the Government.

The Imperfections of the Men, which may promiscuously happenin any Form of Government, are, When those who are intrustedwith the publick Care, perform their Duty either amiss, orslightly; and when the Subjects, who ought to make Obediencetheir Glory, grow restiff and ungovernable.

But the Imperfections of any Constitution, are, When the Lawsthereof are not accommodated to the Temper and Genius of thePeople or Country; or, When the Subjects make use of them forfomenting intestine Disturbances, or for giving unjustProvocations to their Neighbours; or, When the said Laws renderthe Subjects incapable of discharging those Duties that are necessary for thePreservation of the Publick; for Instance, When thro’ their Defect the People must ofNecessity be dissolv’d in Sloth, or rendred unfit for the Injoyment of Peace andPlenty; or when the fundamental Constitutions are order’d after such a Manner, thatthe Affairs of the Publick cannot be dispatched but too slowly, and with Difficulty.



How called. L. N. N.l. 7. c. 5. §11.

XII.

An Irregular State. L.N. N. l. 7. c. 5. §12.

XIII.

Union of severalCommunities. L. N.N. l. 7. c. 5. §17.

XIV.

Union by a commonSovereign.

To these distemper’d Constitutions, Men have given certainNames; as a corrupt Monarchy, is call’d Tyranny; a corruptAristocracy, is styl’d An Oligarchy, or a Rump-Government; anda corrupt Popular State, is call’d An Anarchy, or a Rabble-Government. Altho’ itoften happens, that many by these Nick-names do not so much express the Distemperof such a Government, as their own natural Aversion for the present Governours andConstitution.

For, oftentimes, he who is dissatisfied with his King, or a monarchical Government, iswont to call, even a Good and Lawful Prince, a Tyrant and Usurper, especially if hebe strict in putting the Laws in Execution. So he who is vex’d because he is left out ofthe Senate, not thinking himself Inferiour to any of the other Counsellors, out ofContempt and Envy, he calls them, A Pack of assuming Fellows, who tho’ in noRespect they excell any of the Rest, yet domineer and lord it over their Equals, nay,over better Men than themselves.

Lastly, Those Men who are of a haughty Temper, and who hate a Popular Equality,seeing that all People in a Democracy, have an equal Right to give their Suffrages inPublick Affairs, tho’ in every Place the common People makes the greatest Number,they condemn that as an Ochlocracy, or Government by the Rabble, where there is noPreference given to Persons of Merit, as they, forsooth, esteem themselves to be.

An Irregular Constitution44 is, Where that perfect Union iswanting, in which the very Essence of a Government45 consists:And that not through any Fault or Male-administration46 of theGovernment, but because this Form has been receiv’d as goodand legitimate by publick Law or Custom. But since there maybe infinite Varieties of Errors in this Case, it is impossible to lay down distinct andcertain Species of Irregular Governments. But the Nature thereof may be easilyunderstood by one or two Examples; for Instance, If in a State the Nobles and thePeople are each vested with a supreme and unaccountable Power; * Or if in anyNation the Nobles are grown so great, that they are no otherwise under the King, thenas unequal Confederates.

We call those Unions, when several Constituted Societies bysome special Tie are so conjoin’d, that their Force and Strengthmay be look’d upon in Effect as the united Force and Strength ofone civil Society. Now these Unions may arise two severalWays; the one by a Common Sovereign, the Other by League orConfederacy.

Such a Union happens, by means of a common Sovereign, whendiverse separate Kingdoms, either by Agreement, or byMarriage, or hereditary Succession, or Victory, come to besubject to the same King; yet so that they do not close into oneRealm, but each are still govern’d by the same commonSovereign, according to their own fundamental Laws.



XV.

Union byConfederacy. L. N. N.l. 7. c. 5. §18.

Another Sort of Union may happen, when several neighbouringStates or Governments are so connected by a perpetual Leagueand Confederacy, that they cannot exercise some Parts of thesupreme Power, which chiefly concern their Defence andSecurity against Strangers, but by a general Consent of them All:Each Society, nevertheless, as to other Matters, reserving to itself its own peculiar Liberty and independency.



I.

Supreme Authority L.N. N. l. 7. c. 6.

II.

Unaccountable. L. N.N. l. 7. c. 6. §2.

III.

Above the Laws. L.N. N. l. 7. c. 6. §3.

IV.

Obedience due to it.L. N. N. l. 7. c. 8.

V.

An absoluteMonarchy. L. N. N. l.7. c. 6. §7.

VI.


Chapter Ix

The Qualifications Of Civil Government47

It is always one Prerogative of the Government by which anyCommunity is directed, in every Form of Commonwealthwhatsoever, to be invested with the supreme Authority:*Whereby it has the Regulating of all Things according to its ownJudgment and Discretion, and acts without Dependence upon anyother Person † as Superiour, that can pretend to annul or countermand its Orders.

For the same Reason, a Government so constituted remainsunaccountable to all the World; there being no Authority aboveit to punish it, or to examine whether its Proceedings are right orno.

And a third Qualification of like Nature with the former, is, Thatinasmuch as all civil Laws, of human Authority, derive both theirBeginning and their Continuance from the Favour of theGovernment; it is impossible they should directly oblige the veryPower that makes them; because the same Power would inConsequence be superiour to it self. Yet it is a happy Prospect, and a singularAdvantage to the Laws, when a Prince conforms himself, of his own Pleasure, asOccasion serves, to practise the same Things that he commands his Subjects.

There is also a peculiar Veneration to be paid to the supremeGovernment under which we live; not only in obeying it in itsjust Commands, wherein it is a Crime to disobey, but in induringits Severities with the like Patience as the Rigour of some Parentsis submitted to by dutiful Children. Wherefore, when a Princeproceeds to offer the most heinous Injuries imaginable to his People, let them ratherundergo it, or every one seek his Safety by Flight, than draw their Swords upon theFather of their Country.

We find, in Monarchies and Aristocracies especially, that theGovernment is sometime Absolute and sometime Limited. AnAbsolute Monarch is one, who having no prescrib’d Form ofLaws and Statutes perpetually to go by, in the Method of hisAdministration, proceeds intirely according to his own Will andPleasure, as the Condition of Affairs and the publick Good in hisJudgment seem to require.



A limited MonarchyL. N. N. l. 7. c. 6. §9.

VII.

Right and Manner ofholding. L. N. N. l. 7.c. 6. §14.

But because a single Person may be subject to be mistaken in hisJudgment, as well as to be seduced into evil Courses in theInjoyment of so vast a Liberty; it is thought convenient by someStates, * to circumscribe the Exercise of this Power within the Limits of certain Laws,which are proposed to the Prince at his Succession to be the future Rule of hisGovernment. And particularly when any extraordinary Concern arises, involving in itthe Interest of the whole Kingdom, for which there can be no Provision extant in theConstitution foregoing; They then oblige him to ingage in nothing without theprevious Advice and Consent of the People, or their Representatives in Parliament;the better to prevent the Danger of his swerving from the Interest of the Kingdom.48

We see likewise a Difference in the Right and Manner of holdingsome Kingdoms, from what it is in others. For those Princesespecially who have acquired Dominions by Conquest, and madea People their own by Force of Arms, can divide, alienate, andtransfer their Regalities49 at Pleasure in the manner of aPatrimonial Estate. Others that are advanced by the Voice of thePeople, tho’ they live in full Possession of the Government during their Reigns, yethave no Pretensions to such a Power. But as they attain’d to the Succession, so theyleave it to be determin’d, either by the ancient Custom, or the fundamental Laws ofthe Kingdom: * For which Reason they are compared by some to Usufructuaries, orLife-Renters.



I.

Consent of theSubject free or forced.L. N. N. l. 7. c. 7.

II.

Of Conquest. L. N. N.l. 7. c. 7. §3.

III.

Election. L. N. N. l. 7.c. 7. §6.

IV.

An Interregnum. L. N.N. l. 7. c. 7. §7.

V.


Chapter X

How Government, Especially Monarchical, Is Acquired

Although the Consent of the Subject is a Thing to be required inConstituting of every lawful Government, yet it is not50 alwaysobtain’d the same way. For as it is sometimes seen, that a Princeascends the Throne with the voluntary Acclamations of thePeople; so sometimes he makes himself a King by his Army, andbrings a People to consent by military Force.

Which latter Method of acquiring a Government is calledConquest; it happening, as often as a victorious Prince, havingFortune on his Side and a just Cause, reduces a People by hisArms to such Extremities, as to compel them to receive him fortheir Sovereign. And the Reason of this Title is derived, not onlyfrom the Conqueror’s Clemency in saving the Lives of all those whom, in Strictnessof War, he was at Liberty to destroy, and instead thereof laying only a lesserInconvenience upon them; but likewise from hence, That, when a Prince will chooseto go to War with one that he has injured, rather than he will condescend to satisfiehim in a just and equal Manner; * He is to be presum’d to cast himself upon theFortune of War, with this Intention, that he does beforehand tacitly consent to acceptof any Conditions whatsoever shall befal him in the Event.

As for the voluntary Consent of the People, a Government isacquired by it, when in an Election the People, either in order totheir Settlement, or at any Time after, do nominate such a One,to bear that Office, as they believe is capable of it. Who, uponPresentation of their Pleasure to him, accepting it, and alsoreceiving their Promises of Allegiance, thereby actually enters upon the Possession ofthe Government.

But betwixt this Election of a new Prince and the Death of theformer, there uses in Monarchies that are already fix’d andsettled, to intervene an Interregnum; which signifies animperfect Kind of State, where the People keep together merelyby Virtue of their Original Compact: Only that this is muchstrengthned by the common Name and Love of their Country, and the Settlement ofmost of their Fortunes there; whereby all good Men are obliged to preserve the Peacewith one another, and study to restore their fallen Government again as soon as theycan. Yet to prevent the Mischiefs which are apt to arise in an Interregnum, it is veryconvenient the Law should provide Administrators, to manage the publick Affairsduring the Vacancy of the Crown.



Succession. L. N. N.l. 7. c. 7. §11.

VI.

Devisable when L. N.N. l. 7. c. 6. §16.

VII.

Succession upon anIntestate.

VIII.

Succession in thePeople. L. N. N. l. 7.c. 7. §11.

IX.

Of HereditaryKingdoms. L. N. N. l.7. c. 7. §12.

Now though, as is said, in some Monarchies, as every King dies,they proceed again to a New Election: yet in others, the Crown isconferr’d upon Conditions to descend to certain Personssuccessively, (without any intervening Election) for all Time to come. The Right towhich Succession may either be determined by the Order of the Prince, or the Orderof the People.

When Princes hold their Crowns in the Manner of a Patrimony,they have the Liberty of disposing of the Succession asthemselves please. And their declared Order therein, especially iftheir Kingdoms are of their own Founding or Acquiring, shallcarry the same Force with the last Testament of any private Man.They may divide, if they please, their Kingdom amongst all their Children, not somuch as excepting the Daughters. * They may, if they think fit, make an Adoptive, ortheir Natural Son, their Heir, or one that is not in the least a-kin to them.

And when such an Absolute Monarch as this dies, withoutleaving Order for the Succession, it is to be presumed he did notthereby intend the Kingdom should expire with himself; but first,That it should devolve to his Children (before all others) becauseof the natural Affection of Parents to them: Then, That the sameMonarchical Government should continue, which he recommended by his ownExample. That the Kingdom be kept undivided, as one Realm; because any Divisionthereof must give Occasion to great Troubles, both among the Subjects and the RoyalFamily. That the Elder reign before the Younger, and the Male before the Female inthe same Line: † And, lastly, That in Default of Issue, the Crown shall devolve uponthe next in Blood.

But in those Monarchies, whose Constitution, from the veryBeginning, was founded upon the voluntary Choice of thePeople, there the Order of Succession must have an OriginalDependance upon the Will of the same People. For if, togetherwith the Crown, they did confer upon the Prince the Right ofappointing his Successor; whosoever shall be nominated to theSuccession by him, will have all the Right to injoy it. If they did not confer it upon thePrince, it is to be understood as reserved to themselves: Who, if they pleased, mightmake the Crown Hereditary to their Prince’s Family; either prescribing the Order ofSuccession to be like other ordinary Inheritances, so far as can consist with thePublick Good; or set the same under any peculiar necessary Limitations.

When a People have barely conferr’d upon their King anHereditary Right, without any thing farther express’d; tho’ ’tistrue, it may seem to be intended, that the Crown shall pass to theHeirs in the same common Order of Descent as privateInheritances do; yet the Publick Good requires, That the Sense ofsuch a Publick Act shall be taken under some Restrictions,notwithstanding their not being particularly express’d. As,



X.

A Lineal Succession.L. N. N. l. 7. c. 7.§13.

XI.

By the Father’s side,or the Mother’s.

XII.

Differences aboutSuccession how to bedetermined.

1. It is supposed, That the Kingdom shall continue inseparable, as one Realm.2. That the Succession shall go to the Descendants of the first Prince of theLine. Excluding,3. Illegitimate and Adopted Children, with all that are not born according tothe Laws of the Realm.4. That the Heirs Male be preferr’d before the Female in the same Line, tho’their Inferiors in Age. And,5. That each Prince esteem his Succession, not as the Gift of his Predecessor,but as the Bounty of the People.

Now, because after a long Descent of Princes, there may easilyarise Controversies almost inextricable, about the Person of theRoyal Family, who approaches nearest in Kindred to the Princedeceased; therefore, for Prevention of such, in many Kingdomsthey have introduced a Lineal Succession, of this Nature; That asevery one descends from the Father of the Stem Royal,51 theycompose, as it were, a perpendicular Line; from whence they succeed to the Crown,according to the Priority of that Line to others: And tho’, perhaps, the nearest of Kinto the Prince last deceased, may stand in a New Line, different from that of His; Yetthere is no passing out of the Old Line thither, ’till Death has exhausted the same.

The Series of Succession most regardable, are those Two,deduced from the several Families of the Father and the Mother;the Relation whereof is distinguish’d in the Civil Law by theNames of Cognation and Agnation. The First, called also theCastilian Law, does not exclude the Women, but only postponesthem to Males in the same Line; for it recurs to them in the Case of the other’sDefault. But by the Second, which is sometimes styl’d the French or Salick Law, boththe Women and all their Issue, even Males, are excluded for ever.

When, in a Patrimonial Kingdom, there arises a Disputeconcerning the Succession, the most adviseable Way todetermine it, is, To put it to the Arbitration of some of the RoyalFamily; And where the Succession originally depended upon theConsent of the People, there their Declaration upon the Matter,will take away the Doubt.



I.

L. N. N. 1. 7. c. 9.

II.

Their proper Studiesand Conversation. L.N. N. l. 7. c. 9. §2.

III.

The Publick Good,the Supreme Law. L.N. N. l. 7. c. 9. §3.

IV.

Laws, Discipline, andReligion. L. N. N. l.7. c. 9. §5.


Chapter Xi

The Duty Of Supreme Governours

If we consider what is the End and Nature of Communities, andwhat the Parts of Government, it will be easie from thence topass a Judgment upon the Rules and Precepts, in the Observanceof which, consists the Office of a Prince.52

Before all Things, it is requisite, That he apply himself, with theutmost Diligence, to the Study of whatever may conduce to givehim a perfect Comprehension of the Affairs belonging to aPerson in his Station: because no Man can manage a Place to hisHonour, which he does not rightly understand. He is therefore tobe sequestred from those remote and foreign Studies, whichmake nothing to this Purpose: He must abridge himself in the Use of Pleasures andvain Pastimes, that would divert his Attention from this Mark and End.

And for his more familiar Friends, instead of Parasites and Triflers, or such as areaccomplished in nothing but Vanities, (whose Company ought utterly to be rejected;)let him make Choice of Men of Probity and Sense, experienced in Business, andskilful in the Ways of the World; being assured, that ’till he does thoroughlyunderstand, as well the Condition of his own State, as the Disposition of the Peopleunder him, he will never be able to apply the general Maxims of State Prudence, tothe Cases that will occur in Government, in such a Manner as they ought. Moreespecially, let him study to be excellent in Virtues, that are of the greatest Use andLustre in the Exercise of his vast Charge;53 and so compose the Manners, and all theActions of his Life, that they may be answerable to the Height of his Glory.

The most General Rule to be observed by Governours, is this;The Good of the Publick is the Supreme Law of all.54 Because,in conferring the Government upon them, what is there elseintended, but to secure the common End for which Societieswere constituted in the Beginning? From whence they ought toconclude, That whatsoever is not expedient for the Publick to bedone, ought not to be accounted expedient for themselves.

And it being necessary, in order to preserve a People at Peacewith one another, that the Wills and Affections of them should bedisposed and regulated, according as it is most proper for thepublick Good; there ought to be some suitable Laws for thePurpose prescribed by Princes, and also a publick Disciplineestablished with so much Strictness, that so, Custom, as well asFear of Punishment, may be able to keep Men close to the Practice of their severalDuties. * To which End it is convenient to take Care, that the Christian Religion, after



V.

The Laws plain andfew.

VI.

And duly executed. L.N. N. l. 7. c. 9. §6.

VII.

Penalties. L. N. N. l.7. c. 9. §7.

VIII.

Injuries. L. N. N. l. 7.c. 9. §8.

the most pure and most uncorrupt Way, be profess’d by the Subjects of every Realmor Community; and that no Tenets be publickly taught in the Schools, that arecontrariant to the Designs of Government.

It will conduce to the Advancement of the same End, that in theAffairs which are wont to be most frequently negociated betweenSubject and Subject, the Laws which are prescribed be clear andplain; and no more in Number than will promote the Good of theRepublick and its Members. For, considering that Men use todeliberate upon the Things they ought, or ought not to do, more by the Strength oftheir Natural Reason, than their Understanding in the Laws; whenever the Laws do soabound in Number, as not easily to be retained in Memory; or are so particular intheir Matter, as to prohibit Things which are not prohibited by the Light of Reason; itmust certainly come to pass, That innocent Persons, who have not had the least illIntention to transgress the Laws, will be many times unwittingly hamper’d by them,as by Snares, to their unreasonable Prejudice, against the very End of Societies andGovernment.

Yet it is in vain for Princes to make Laws, and at the same timesuffer the Violation of them to pass with Impunity. They musttherefore cause them to be put in Execution, both for everyhonest Person to injoy his Rights without Vexation, Evasions, orDelays; and also for every Malefactor to receive the Punishmentdue to the Quality of his Crime, according to the Intention and Malice in thecommitting it. They are not to extend their Pardons to any without sufficient Reason.For it is an unjust Practice, which tends greatly to irritate the Minds of People againstthe Government, not to use Equality (all Circumstances considered) towards Personsthat are Equal in their Deservings.

And as nothing ought to be Enacted under a Penalty, without theConsideration of some Profit to the Common-wealth, so in thefixing of Penalties proportionably to that End, it is fitting toobserve a Moderation; with Care, that the Damage thence arisingto the Subject on the one Hand, exceed not the Advantage thatredounds to the Common-wealth on the other. In fine, to render Penalties effectual inobtaining the End intended by them, it is clear they should still be magnified to such aDegree, as, by their Severity, to out-weigh the contrary Gain and Pleasure, that ispossible to proceed from chusing the Crime.

Moreover, inasmuch as the Design of People, in incorporatingtogether in a Common-wealth, is their Security from Harms andViolence; it is the Duty of the supreme Magistrate to prohibitany Injury of one Subject to another so much the more severely,because, by their constant Cohabitation in the same Place, theyhave the fairer Opportunities to do them or to resent them: Remembring, that noDistinctions of Quality or Honour derive the least Pretence to the Greater to insultover the Less at their Pleasure. Neither has any Subject whatsoever the Liberty to seek



IX.

Ministers of State andJudges. L. N. N. l. 7.c. 9. §9.

X.

Of Taxes and Duties.L. N. N. l. 7. c. 9.§10.

XI.

Interest of the Subjectto be advanced byPrinces. L. N. N. l. 7.c. 9. §11.

his Satisfaction for the Injuries, he presumes are done him, in the Way of a privateRevenge. For the Design of Government is destroyed by such a Proceeding as this.

And although there is no one Prince, how ingenious soever inBusiness, that is able in his own Person to manage all the Affairsof a Nation of any considerable Extent, but he must haveMinisters to participate with him in his Cares and Counsels; Yetas these Ministers borrow their Authority, in every Thing theydo, from Him; so the Praise or Dispraise of their Actions returnsfinally upon Him also. For which Reason, and because according to the Quality ofMinisters, Business is done either well or ill, there lies an Obligation upon a Prince toadvance honest and fit Persons to Offices of Trust in the Government, and uponOccasion to examine into the Proceedings of the same; and as he finds themdeserving, to reward or punish them accordingly, for an Example to others tounderstand, that there is no less Fidelity and Diligence to be used in managing thepublick Business, than one would practise in any private Affair that relates to himself.So when wicked People are incouraged to put their Inclinations in Practice, upon theHopes of escaping very easily unpunish’d under Judges that are subject toCorruption; it is a Prince’s Duty to animadvert severely upon such Judges, asFavourers of Vice, against the Safety of the Subject, and Quiet of the Nation.55 Andthough the Dispatching of the ordinary Affairs may be committed to the MinistersCare; yet a Prince is never to refuse to lend his Ear with Patience, when his Subjectspresent him with their Complaints and Addresses.

For Taxes and the like Duties, to which Subjects are upon noother Account obliged, than as they are necessary to support thepublick Charge in Peace and War; it deserves to be the Care ofPrinces not to extort more, than either the Necessities or signalAdvantages of the Nation56 require; and so to alleviate andsoften them in the Ways and Means of laying them upon theSubject, that every one may find their Weight as little offensive as it can possibly be;being charged upon Particulars in a fair and equitable Proportion, without favouringof one Person, to deceive or oppress another. And let not the Money that is so rais’dbe consumed by Princes in Luxury and Vanities, or thrown away in Gifts and needlessOstentation; but laid out upon the Occasions of the Nation; always foreseeing, thattheir Expences be made to answer to their Revenue; and in case of any Failure in thelatter, so to order Things, that by prudent Frugality and retrenching unnecessaryExpences, the Publick may not suffer Damage for want of a sufficient Treasure.

It is true, Princes have no Obligation upon them to findMaintenance for their Subjects, otherwise than Charity directsthem to a particular Care of those, for whom it is impossible tosubsist of themselves by Reason of some Calamity undeserved.Yet because the Money, that is necessary for the Conservation ofthe Publick, must be raised out of the Subjects Estates, in whoseWealth and Happiness the Strength of a Nation does consist; it therefore concernsPrinces to use their best Endeavours, that the Fortunes of their Subjects improve andflourish; as particularly, by giving Orders, how the Products of the Earth and Water



XII.

Factions and Parties.L. N. N. l. 7. c. 9.§12.

XIII.

Of War and Peacewith foreign Nations.L. N. N. l. 7. c. 9.§13.

may be received in the most plentiful Measure; and that Men employ their Industry inimproving such Matters as are of their own Growth, and never hire foreign Hands forthose Works which they can conveniently perform themselves. That all MechanickArts and Merchandise, and in Maritime Places, Navigation be incouraged, as of greatConsequence to the Commonwealth. That Idleness be banished from amongst them,and Frugality be restored by Sumptuary Laws, contrived on Purpose to avoidsuperfluous Expences; especially those, which occasion the transporting of Riches outof the Kingdom. Whereof, if the Prince is pleased to set an Example in his ownPerson, it is likely to prove of greater Force than all the Laws beside.

Farther, Since the internal Health and Strength of a Nationproceeds in a particular Manner from the Unity that is among thePeople;57 and according as this happens to be more and moreperfect, the Power of the Government diffuses it self through thewhole Body with so much the greater Efficacy: It is for thisReason incumbent upon Princes, to hinder, as well the Growth ofpublick Factions, as of private Associations of particular Persons by Agreementsamongst themselves. As also to see, that neither all, nor any of the Subjects, place agreater Dependance, or rely more for Defence and Succour on any other Person,within or without the Realm, under any Pretence whatsoever, whether Sacred orCivil,58 than on their lawful Sovereign, in whom alone, before others, all theirExpectations ought to be reposed.

Lastly, Since the Peace of Nations in reference to one anotherdepends upon no very great Certainties; it ought to be theEndeavour of Princes to incourage Valour and Military Studiesin their Subjects; having all things, as Fortifications, Arms, Men,and Money (which is the Sinews of Civil Affairs) readyprepared, in case of any Attack from abroad, to repel it: Thoughnot voluntarily to begin one upon another Nation, even after sufficient Cause of Wargiven, unless when invited by a very safe Opportunity, and that the Publick be in agood Condition conveniently to go thro’ with the Undertaking. For the same Reason itis proper to observe and search into the Counsels and Proceedings of Neighbours withall Exactness, and to enter with them into Leagues and Alliances as prudently, as sogreat a Concern requires.



I.

What they are. L. N.N. l. 8. c. 1. §1.

II.

Why so called.

III.

The Law of Nature tobe reinforced bythem. L. N. N. l. 8. c.1. §2.

IV.

The Penal Sanction.


Chapter Xii

Of The Special Laws Of A Community, Relating To The CivilGovernment59

IT Now remains, That we take a view of the respective Parts ofSupreme Government, together with such Circumstancesthereunto belonging, as we find are worthy to be observ’d. In thefirst Place, there are the Civil Laws, meaning the Acts andConstitutions of the highest Civil Authority for the Time being,ordained to direct the Subject in the Course of his Life, as to what Things he ought todo, and what to omit.

These are called Civil, upon two Accounts especially: That is,Either in Regard to their Authority, or their Original.60 In thefirst Sense, all manner of Laws whatsoever, by the Forcewhereof Causes may be tried and decided in a Court of CivilJudicature, let their Original be what it will, may pass under that Denomination. In theother, we call only those Laws Civil, which derive their Original from the Will of theSupreme Civil Government, the Subjects whereof are all such Matters, concerningwhich neither the Laws of God or Nature have determined; yet a due Regulation andSettlement of them is found to be very conducive and advantagious to particularCommonwealths.

As nothing therefore ought to be made the Subject of a CivilLaw, but what relates to the Good of the Commonwealth thatdoes ordain it; so it seeming in the highest Degree expedienttowards the Regularity and Ease of living in a Community, Thatin particular the Law of Nature should be diligently observed byall People; it lies upon Supreme Governours to authenticate thesaid Law with the Force and Efficacy of a Civil Law.61 For since indeed theWickedness of a great Part of Mankind is arrived to a Degree, which neither theapparent Excellency of the Law of Nature, nor the Fear of God Himself, is sufficientto restrain; the most effectual Method remaining, to preserve the Happiness of livingin a Community, is, by the Authority of the Government to inforce the Natural by theCivil Laws, and supply the Disability of the one with the Power of the other.

Now the Force and Power, which is in Civil Laws, consists inthis, That to the Mandatory Part of the Statute, concerningThings to be done or omitted, there is annexed a Penal Sanction,assigning the Punishment that is to be inflicted upon a Man by aCourt of Justice for omitting what he ought to do, or doing what he ought to omit. Ofwhich Kind of Sanctions, the Laws of Nature being of themselves destitute, thebreaking of them does not fall under the Punishment of any Court in this World; butyet it is reserved for the Judgment of the Tribunal of GOD.



V.

Of Actions

VI.

The Prosecution ofthem.

VII.

Form.

VIII.

The Obedience due tothe Civil Laws.

IX.

And to the particularCommands of the

More particularly, it is inconsistent with the Nature of living in aCommunity, for any one by his own Force to exact and extortwhat himself accounts to be his Due. So that here the Civil Lawscome in, to the Assistance of the Natural. For they allow theCreditor the Benefit of an Action, whereby the Debt that is owing to him by Virtue ofa Law of Nature, with the Help of the Magistrate, may be demanded and recover’d ina Court of Justice, according to the Course of the Laws of the Nation: Whereaswithout such Inforcement of the said Laws, you can force nothing from a Debtoragainst his Will; but must intirely depend upon his Conscience and Honour. The CivilLaws admit of Actions chiefly in the Case of those Obligations that are contractedbetwixt Parties by an express Bond or Covenant. For as to other Affairs, where theObligation arises from some indefinite Duty of the Law of Nature, the Civil Lawsmake them not subject to an Action at all; on purpose to give occasion to good Men toexercise their Virtue, to their more extraordinary Praise, when it is evident, they dothat which is just and honest without Compulsion. Beside that, frequently, the Point inQuestion may not be of Consequence enough to trouble a Court about it.

And whereas the Law of Nature commands many Things atlarge, in an indefinite Manner, and leaves the Application ofthem to every one in his own Breast; the Civil Laws beingcareful of the Honour and Tranquillity of the Community,prescribe a certain Time, Manner, Place, Persons, and otherCircumstances, for the due Prosecution of those Actions, with the Proposal of aReward upon Occasion, to incourage People to enter upon them. And when any Thingis obscure in the Law of Nature, the Civil Laws explain it. Which Explication theSubjects are obliged to receive, and follow, although their own private Opinions dootherwise lead them to a contrary Sense.62

So that there being thus a Number of Actions, left by the Law ofNature to be consider’d according to the Will and Judgment ofeach Person, which nevertheless in a Common-wealth ought tobe regularly stated for the greater Decency and Quiet of thesame; it uses to be the Care of the Civil Laws to reduce all those Actions, with theirrespective Concerns, to a proper Form; as we see it is in Wills, Contracts, and diversother Cases: from whence it comes, that they limit us (as they do) in the Exercise ofseveral Rights, to the Use whereof the Law of Nature left us much at Liberty.

For so far as the Civil Laws do not openly contradict the Law ofGOD, the Subjects stand obliged to obey them, not merely out ofFear of Punishment, but by an internal Obligation confirm’d bythe Precepts of the Law of Nature it self. This being one of them,amongst others, That Subjects ought to obey their lawfulSovereigns.

Nay, it is their Duty to obey even the Personal Commands oftheir Sovereigns, no less than they do the Common Laws of theKingdom. Only here they must observe, whether the Thingcommanded is to be done by them as in their own Names, in the



Sovereign, L. N. N. l.8. c. 1. §6.

Quality of an Action belonging properly to Subjects to do; orwhether it be barely to undertake the Execution of an Affair forthe Sovereign, in Consequence of that Authority which he has tocommand it. * In the latter Case, the Necessity that is imposed upon the Subjectexcuses him from Sin, tho’ to command the Fact it self is a Sin in the Sovereign. Butin the Other, for a Subject, as in his own Name, to do a Thing which is repugnant tothe Laws of God and Nature, can never be Lawful. And this is the Reason, why, if aSubject takes up Arms in an unjust War, at the Command of his Sovereign, he sinsnot: Yet if he condemns the Innocent, or accuses and witnesses against them falselyupon the like Command, he sins. For as he serves in War, he serves in the Name ofthe Publick; but acting as a Judge, Witness, or Accuser, he does it in his Own.



I.

Twofold.

II.

Indirectly.

L. N. N. l. 8. c. 2.

III.

Directly. L. N. N. l. 8.c. 3. §1.

IV.

Of Punishments L. N.N. l. 8. c. 3. §4.


Chapter Xiii

Of The Power Of Life And Death

The Civil Government, that is supreme in every State, has aRight over the Lives of its Subjects, either indirectly, when itexposes their Lives in Defence of the Publick; or directly, in thePunishment of Crimes.

For when the Force of Foreigners in an Invasion (which oftenhappens) is to be repell’d by Force; or, That we cannot withoutthe Use of Violence obtain our Rights of them; it is lawful for theGovernment, by its supreme Authority, to compel the Subjects toenter into its Service;not thereby purposely intending their Death, only their Lives areexposed to some Danger of it. On which Occasions, that theymay be able to behave themselves with Skill and Bravery, it is fit they should beexercised and prepar’d for the Purpose. Now the Fear of Danger ought not to prevailwith any Subject, to render himself uncapable of undergoing the Duties of a Soldier;much less ought it to tempt a Man that is actually in Arms, to desert the Stationappointed him; who ought to fight it out to the last Drop of his Blood, unless heknows it to be the Will of his Commander, that he should rather preserve his Life thanhis Post; or if he be certain that the maintaining of such Post is not of so greatImportance, as the Preservation of the Lives ingaged therein.

The Government claims a Power to take away the Lives ofSubjects directly, upon the Occasion of any heinous Crimescommitted by them; * whereon it passes Judgment of Death byway of Punishment: As likewise the Goods and Chattels ofCriminals are subject to the Censure of the Law. So that heresome general Things concerning the Nature of Punishments, come to be discours’d.

Punishment is an Evil that is suffered, in Retaliation for anotherthat is done. Or, A certain grievous Pain or Pressure, imposedupon a Person by Authority, in the Manner of Force, with Regardto an Offence that has been committed by him. For although thedoing of some Things may oftentimes be commanded in thePlace of a Punishment, yet it is upon this Consideration, that the Things to be done aretroublesome and laborious to the Doer, who will therefore find his Sufferings in thePerformance of such Action. A Punishment also signifies its being inflicted againstthe Wills of People: For it would not otherwise obtain its End; which is, to deter themfrom Crimes by the Sense of its Severity:63 An Effect it never would produce, if itwere only such, as an Offender is willing and pleas’d to undergo. As for otherSufferings, which happen to be undergone in Wars and Engagements; or which onebears innocently, being wrongfully and injuriously done him; the Former not being



V.

Inflicted by theGovernment. L. N. N.l. 8. c. 3. §7.

VI.

The Benefit of them.

VII.

The End of them. L.N. N. l. 8. c. 3. §8.

VIII.

Upon the Offender. L.N. N. l. 8. c. 3. §9.

IX.

Upon the Partyoffended. L. N. N. l. 8c. 3. §11.

inflicted by Authority, and the Other not referring to an antecedent Crime, they doneither of them import the proper Sense and Meaning of a Punishment.

By our Natural Liberty, we enjoy the Privilege to have no otherSuperiour but G O D over us, * and only to be obnoxious64 toPunishments Divine. But since the Introduction of Government,it is allow’d to be a Branch of the Office of those in whoseHands the Government is intrusted, for the Good of allCommunities; that upon the Representation of the unlawfulPractices of Subjects before them, they should have Power effectually to coerce,[punish and restrain] the same, that People may live together in Safety.

Neither does there seem to be any Thing of Inequality in this;that he who Evil does should Evil suffer. Yet in the Course ofHuman Punishments, we are not solely to regard the Quality ofthe Crime, but likewise to have an Eye upon the Benefit of thePunishment: By no means executing it on purpose to feed the Fancy of the Partyinjur’d, or to give him Pleasure in the Pains and Sufferings of his Adversary: Becausesuch Kind of Pleasure is absolutely inhumane, as well as contrary to the Dispositionof a good Fellow-Subject.

The Genuine End of Punishments in a State, is, The Preventionof Wrongs and Injuries; which then have their Effect, when hewho does the Injury is amended, or for the future incapacitatedto do more, or others taking Example from his Sufferings aredeterr’d from like Practices; or, to express it another way, Thatwhich a Government designs in the Matter of Punishments, is the Good, either of theOffender, or the Party offended, or generally of All its Subjects.

First, We consider the Good of the Offender: In whose Mind theSmart of the Punishment serves to work an Alteration towardsAmendment, and corrects the Desire of doing the same again.Divers Communities leave such Kind of Punishments as arequalified with this End, to be exercis’d by Masters over theMembers of their own Families. But it never was thought good they should proceedso far as to Death, because, he that is dead is past Amendment.

In the next Place, a Punishment intends the Good of the Partyoffended: securing him, that he suffer not the like Mischief forthe future, either from the same or other Persons. He becomessecure from being again injured in like Manner by the samePerson; first, By the Death of the Criminal; or, secondly, If he beallow’d Life, by depriving him of Power to hurt; as, by keepinghim in Custody, taking his Arms, or other Instruments of Mischief, from him,securing him in some distant Place, and the like; or, thirdly, By obliging him to learn,at his own Peril, not to incur farther Guilt, or offend any more. But then to secure theParty offended from suffering the like Injury from other Hands, it is necessary that theOffender be punished in a most Open and Publick Manner, whereby the Criminal may



XII.

Nor minute Lapses.

XIII.

And other Actions. L.N. N. l. 8. c. 3. §14.

XIV.

Nor the Vices of theMind.

XV.

Of Pardon. L. N. N. l.8. c. 3. §15.

XVI.

become an Example to all others; and that his Punishment be accompanied with suchCircumstances of Form and Pomp, as are apt to strike a Dread into as many as beholdit.

It would also be over severe in Laws, to punish the more minuteLapses which may daily happen in the Actions of Men; when, inthe Condition of our Natures, the greatest Attention cannotprevent them.

There are many Instances of Actions more, of which the PublickLaws dissemble the taking of any Notice, for the sake of thePublick Peace. As sometimes, because a good Act shines withgreater Glory, if it seems not to have been undertaken upon Fearof human Punishment; or, perhaps, it is not altogether worth thetroubling of Judges and Courts about it; or, it is a Matter extraordinarily difficult to bedecided; or it may be some old inveterate Evil, which cannot be removed, withoutcausing a Convulsion in the State.

In fine, it is absolutely necessary, That all those Disorders of theMind should be exempted from Punishment, that are the Effectsof the common Corruption of Mankind; such as Ambition,Avarice, Rudeness, Ingratitude, Hypocrisy, Envy, Pride, Anger,private Grudges, and the like. All these of Necessity, must beexempted from the Cognizance of Human Judicatures, so long as they break not outinto publick Enormities; seeing they abound to that Degree, that if you shouldseverely pursue them with Punishments, there would be no People left to be theSubjects of Government.

Farther, When there have been Crimes committed, which arepunishable by the Civil Judicature, it is not always necessary toexecute the Sentence of Justice upon them. For in some Cases aPardon may possibly be extended to Criminals, with a great dealof Reason, (as it never ought to be granted without it;) andamongst other Reasons, these especially may be some: That the Ends, which areintended by Punishments, seem not so necessary to be attended to in the Case inQuestion: Where a Pardon may produce more Good than the Punishment, and the saidEnds be more conveniently obtain’d another way: That the Prisoner can allege thoseexcellent Merits of his own or of his Family towards the Common-wealth, whichdeserve a singular Reward: That he is famous for some remarkable rare Art or other;or, it is hoped, will wash away the Stain of his Crime by performing some NobleExploit: That Ignorance had a great Share in the Case, tho’ not altogether such as torender the Criminal blameless: Or, That a particular Reason of the Law ceases in aFact of the same Nature with his. For these Reasons, and oftentimes for the Numberof the Offenders, being very great, Pardons must be granted, rather than theCommunity shall be exhausted by Punishments.



The greatness of aCrime L. N. N. l. 8. c.3. §18.

XVII.

Measure and Kind ofPunishment. L. N. N.l. 8 c. 3. §24.

XVIII.

The Person of theOffender. L. N. N. l.8. c. 3. §25.

XIX.

Effects of one Man’sCrime upon another.L. N. N. l. 8. c. 3.§33.

To take an Estimate of the Greatness of any Crime, there is to beconsider’d, first, The Object against which it is commited; howNoble and Precious that is: Then, The Effects; what Damage,more or less it has done to the Common-wealth: And next, ThePravity of the Author’s Intention, which is to be collected by several Signs andCircumstances: As, Whether he might not easily have resisted the Occasions that didtempt him to it? and besides the common Reason, Whether there was not a peculiarone for his Forbearance? What Circumstances aggravate the Fact? or, Is he not of aSoul dispos’d to resist the Allurements of a Temptation? Inquiring yet farther,Whether he was not the Principal in the Commission? or, Was he seduced by theExample of others? Did he commit it once, or oftner, or after Admonition spent invain upon him?

But for the precise Kind and Measure of Punishment, that is fit tobe pronounced upon each Crime, it belongs to the Authority ofthe Government to determine it, with an intire Regard to theGood of the Common-wealth. Whence the same Punishmentmay, and oftentimes is, impos’d upon two unequal Crimes;understanding the Equality that is commanded to be regarded byJudges, to mean the particular Case of those Criminals, who being guilty of the sameKind of Fact, the one shall not be acquitted, and the other condemned without verysufficient Reason. And although Men ought to shew to one another all the Mercy andTenderness that may be; yet the Good of the Nation,66 and the Security of itsSubjects, require, upon Occasion, when either a Fact appears most pernicious to thePublick, or there is need of a sharp Medicine to obviate the growing Vices of the Age,that the Government should aggravate its Punishments: which deserve at all times tobe carried high enough, to be sufficient to controll the Propensity of Men towards theSins against which those Punishments are levell’d. And let the Government observe,That no greater Punishments be inflicted, than the Law assigns, unless the Fact beaggravated by very heinous Circumstances.

Moreover, Since the same Punishment, not affecting all Personsalike, meets with various Returns to the Design thereof, ofrestraining in them the Itch of Evil-doing, according to theDisposition of every one that incounters it; therefore both in theDesignation of Punishments in general, and in the Application ofthem to Particulars, it is proper to consider the Person of theOffender, in Conjunction with as many Qualities as concur to augment or diminish theSense of Punishment; as, Age, Sex, Condition, Riches, Strength, and the like.

Not but that it frequently happens,67 that the Crime of one shalloccasion the Inconvenience of many others, even to theIntercepting of a future Blessing from them that they justlyexpected to receive. So when an Estate is confiscated for a Crimedone by the Parents, the innocent Children are plunged intoBeggary. And when a Prisoner upon Bail makes his Escape, theBail is forced to answer the Condition of the Bond, not as a Delinquent, but because itwas his voluntary Act to oblige himself to stand to such an Event.



XX.

Crimes done byCommunities. L. N.N. l. 8. c. 3. §28.

From whence it follows, That as no Man in a Court of CivilJudicature, can properly be punish’d for another’s Crime; so inthe Commission of a Crime by a Community,68 whoever doesnot consent to it, shall not be condemn’d for it; nor suffer theLoss of any Thing he does not hold in the Name and Service ofthe Community, farther than it is usual on these Occasions forthe Innocent to feel the Smart of the Common Misfortune. When all those are dead,who did consent or assist towards the said Crime; then the Guilt thereof expires, andthe Community returns to its pristine Innocency.



I.

Defined. L. N. N. l. 8.c. 4. §1.

II.

Divided.

III.

Simple Reputation ina State of Nature. L.N. N. l. 8. c. 4. §2.

IV.

How preserved. L. N.N. l. 8. c. 4. §3.

V.

Diminished, andrepaired. L. N. N. l. 8.c. 4. §4.

VI.

Lost, and recovered.L. N. N. l. 8. c. 4. §5.

VII.

Under Government.L. N. N. l. 8. c. 4. §6.


Chapter Xiv

Of Reputation

Reputation in General, is that Value set upon Persons in theWorld, on some account or other, by which they are compar’dand equaliz’d, preferr’d or postpon’d69 to others.

It is divided into Simple, and Accumulative; and may beconsider’d as to both, either in a People living at their NaturalLiberty, or united together under a Government.

Simple Reputation amongst a People in their Natural Liberty,consists chiefly in this, That by their Behaviour, they have theHonour to be esteem’d, and treated with, as Good Men, ready tocomport themselves in Society with others, according to thePrescription of the Law of Nature.

The Praise whereof remains Entire, so long as no evil andenormous Fact is knowingly and wilfully done by them, with awicked Purpose, to violate the Laws of Nature towards theirNeighbour. Hence every one naturally is to pass for a Good Man,’till the contrary is prov’d upon him.

The same is diminish’d by Transgression against the Law ofNature maliciously, in any heinous Matters; which serves also asa Caution for the future, to treat with him that does it, withgreater Circumspection; though this Stain may be wash’d off,either by a voluntary Reparation of Damages, or the Testimoniesof a serious Repentance.

But by a Course of Life directly tending to do Mischief, and theseeking of Advantages to themselves, by open and promiscuousInjuries towards others, the Reputation describ’d is totallydestroyed. And till Men of this sort repent, and change theirWays, they may lawfully be used as Common Enemies, by everyone, that is in any manner liable to come within the Reach of their Outrages: Since itis not impossible, even for those Men, to retrieve their Credit; if after they haverepair’d all their Damages and obtain’d their Pardons, they renounce their vicious, andembrace for the time to come, an honest Course of living.

Simple Reputation, with regard to such as live under CivilGovernment, is that Sort of Esteem, by which a Man is looked onat the lowest, as a common but a sound Member of the State: Orwhen a Man hath not been declar’d a corrupt Member, according



VIII.

Lost by an illCondition of Life, L.N. N. l. 8. c. 4. §7.

IX.

And his Crimes.

X.

Otherwise Indelible.L. N. N. l. 8. c. 4. §9.

XI.

AccumulativeReputation. L. N. N. l.8. c. 4. §11.

XII.

Twofold.

XIII.

The Grounds of it. L.N. N. l. 8. c. 4. §12.

to the Laws and Customs of the State, but is supposed to be a good Subject, and islook’d upon accordingly, and valu’d for such.

Here therefore the same perishes, either by Reason of the Courseof a Man’s Life, or in Consequence of some Crime. The first isthe Case of Slaves; whose Condition, tho’ naturally having noTurpitude in it, in many Communities places them, if possible,below Nothing. As likewise that of Panders, Whores, and suchlike, whose Lives are accompanied with Vice, at least theScandal of it. For tho’, whilst the Community thinks fit publickly to tolerate them,they participate of the Benefit of the Common Protection; yet they ought however tobe excluded the Society of Civil Persons. And we may conclude no less of others,who are employ’d in Works of Nastiness and Contempt, tho’ naturally not includingany Vitiousness in them.

By Crimes Men utterly lose their Reputation, when the Laws seta Brand of Infamy upon them for the same; either by Death, andso their Memory is set under Disgrace for ever; or byBanishment out of the Community, or by Confinement, beingconsider’d as scandalous and corrupt Members.

Otherwise it is very clear, that the Natural Honour of no Mancan be taken from him solely by the Will of the Government. Forhow can it be understood, that the Government should have aPower collated on it, which conduces in no Degree to the Benefitof the Common-wealth? So neither does it seem, as if a realInfamy can be contracted by executing the Commands of the Government, barely inthe Quality of a Minister, or Officer.

Accumulative Reputation we call that, by which Persons,reciprocally equal as to their Natural Dignity, come to bepreferr’d to one another according to those Accomplishments,which use to move the Minds of People to pay them Honour: ForHonour is properly, the Signification of our Judgmentconcerning the Excellency of another Person.

This Sort of Reputation may be consider’d, either as amongstthose who continue in the Liberty of a State of Nature, oramongst the Members of the same Common-wealth. We willexamine, what the Foundations of it are, and how they producein People, both a Capacity to expect the being Honoured by others; and an actualRight, strictly so called, to demand it of them as their Due.

The Foundations of an Accumulative Reputation, are in Generalreckoned to be all Manner of Endowments, either reallycontaining, or such as are supposed to contain, some greatExcellency and Perfection, which has plainly a Tendency in itsEffects to answer the Ends of the Laws of Nature or Societies.



XIV.

The Distinction of aCapacity and a Rightto it. L. N. N. l. 8. c.4. §14.

XV.

Amongst Princes andStates. L. N. N. l. 8. c.4. §20.

XVI.

Amongst Subjects. L.N. N. l. 8. c. 4. §24.

Such are Acuteness and Readiness of Wit, a Capacity to understand several Arts andSciences, a sound Judgment in Business, a steddy Spirit, immoveable by outwardOccurrences, and equally superiour to Flatteries and Terrours: Eloquence, Beauty,Riches; but, more especially the Performing of good and brave Actions.

All these Things together, produce a Capacity to receive Honour,not a Right. So that if any Person should decline the Payment ofhis Veneration to them, he may deserve to be taken Notice of forhis Incivility, but not for an Injury. For a perfect Right to behonoured by others, that bear the Ensigns thereof, proceedseither from an Authority over them; or from some mutualAgreement; or from a Law that is made and approved by one Common Lord andMaster.

Amongst Princes and independent States, they usually alledge,for Honour and Precedence, the Antiquity of their Kingdomsand Families, the Extent and Richness of their Territories, theirPower Abroad and at Home, and the Splendour of their Styles.Yet neither will all these Pretences beget a perfect Right in anyPrince or State to have the Precedence of others, unless the samehas been first obtained by Concession or Treaty.

Amongst Subjects, the Degree of Honour is determined by thePrince, who wisely therein regards the Excellency of eachPerson, and his Ability to advance the publick Good. Andwhatever Honour a Subject receives in this Nature, as he mayjustly claim it against his Fellow-Subject, so he ought no less tosatisfie himself in the quiet Enjoyment of it.



I.

Threefold. L. N. N. l.8. c. 5. §1.

II.

By Laws. L. N. N. l.8. c. 5. §3.

III.

By Taxes andCustoms. L. N. N. l.8. c. 5. §4.

IV.

By Seisure forpublick Useextraordinary. L. N.N. l. 8. c. 5. §7.

V.


Chapter Xv

Of The Power Of Governours Over The Goods Of TheirSubjects

As it wholly lies at the Pleasure of supreme Governours, toappoint with what Restriction they will allow their Subjects tohave Power over the Goods which themselves derive upon them;so also over the Goods of the Subjects own acquiring by theirproper Industry or otherwise, the said Governours claim athreefold Kind of Right, resulting from the Nature, and as being necessary to the End,of Communities.70

Their First, consists in this; That it belongs to them to prescribeLaws to the Subjects, about the Measure and Quality of theirPossessions; and which way to transfer the same from Hand toHand, with other Particulars of the like Nature; and how to applythem in the Use to the best Advantage of the whole Body.

By the Second, they claim to appropriate to themselves, out ofthe Goods of the Subjects, a Portion by the Name of Tribute andCustoms. And it is but reasonable, that since the Lives andFortunes of all the Members are defended by the Community, thenecessary Charges thereof should be defrayed by a generalContribution. For he must be very impudent indeed, who willenjoy the Protection and Priviledges of a Place, and yet contribute nothing in Goodsor Service towards its Preservation. Only herein there will be great Occasion forGovernours to accommodate themselves with Prudence to the querulous Temper ofcommon People; and let them endeavour to levy the Money the most insensibly thatthey can: Observing first an Equality towards all, and then to lay the Taxes ratherupon the smaller Commodities of various Kinds, than upon the Chief in a moreuniform Way.

The Third, is a *Right of Extraordinary Dominion, consisting inthis; That upon an urgent Necessity of State, the Goods of anySubject, of which the present Occasion has need, may be takenand applied to publick Uses, tho’ far exceeding the Proportion,that the Party is bound to contribute towards the Expences of theCommon-wealth, For which Reason, as much (if it be possible)ought to be refunded to him again, either out of the publick Stock, or by theContribution of the Rest of the Subjects.



Publick Revenuesunalienable. L. N. N.l. 8. c. 5. §9.

VI.

Neither Royal Powernor Allegiance,alienable. L. N. N. l.8. c. 5. §10.

Beside these three Pretensions over the private, in diversCommunities there are some particularly call’d, the publickEstate; which carry also the Name of the Kingdom’s, or thePrince’s Patrimony, according as they are distributed into theTreasury or the Privy Purse. The Latter serves for the Maintenance of the Prince andhis Family; who has a Property in it during Life, and may dispose of the Profits thencearising at his Pleasure: But the Use of the Other is appropriated for the publickOccasions of the Kingdom; the Prince officiating therein as Administrator only, andstanding obliged to apply all to the Purposes to which they are designed. And neitherof the two Patrimonies can be alienated by the Prince without the People’s Consent.

Much less can a whole Kingdom (that is not held patrimonially)or any Part of it, be alienated without their Consent to it: And inthe latter Case particularly the Consent of that Part that is to bealienated. As on the other Hand no Subject against the Will ofhis Community, can possibly disingage himself from the Bondsof his Duty and Allegiance to it; unless the Force of foreignEnemies reduces him to such a Condition, that he has no other Way to be safe.



I.

Necessity of Warsometimes. L. N. N. l.8. c. 6. §2.

II.

Just Causes of War.L. N. N. l. 8. c. 6. §4.

III.

AmicableComposition.

IV.

Unjust Causes ofWar. L. N. N. l. 8. c.6. §5.

V.

Of Deceit in War. L.N. N. l. 8. c. 6 §6.


Chapter Xvi

Of War And Peace

Altho’ nothing is more agreeable to the Laws of Nature, than themutual Peace of Men with one another, preserved by thevoluntary Application of each Person to his Duty; living togetherin a State of Peace, being a peculiar Distinction of Men fromBrutes; yet it is sometimes both Lawful and Necessary to go toWar, when by means of another’s Injustice, we cannot, withoutthe Use of Force, preserve what is our own, nor injoy those Rights which are properlyours. But here common Prudence and Humanity do admonish us * to forbear ourArms there, where the Prosecution of the Injuries we resent, is likely to return moreHurt upon us and ours, than it can do Good.

The just Causes upon which a War may be undertaken, come allto these: The Preservation of our selves, and what we have,against an unjust Invasion; and this Sort of War is called*Defensive. The Maintenance and Recovery of our Rights fromthose that refuse to pay them: The Reparation of Injuries done tous, and Caution against them for the future. And this Sort of War is called Offensive.

Not that upon a Prince’s taking himself to be injur’d, he ispresently to have Recourse to Arms, especially if any Thingabout the Right or Fact in Controversie remains yet underDispute. † But first let him try to compose the Matter in anamicable Way, by Treaties, by Appeal to Arbitrators, or bysubmitting the Matter in Question to the Decision of a Lot; ‡ and these Methods arethe rather to be chosen by that Party who claims from another, because Possession,with any Shew of Right, is wont to meet with the most favourable Constructions.

The unjust Causes of War, are either those which openly to allthe World are such; as, Ambition and Covetousness, and whatmay be reduced thereto: Or § those that admit of a faint andimperfect Colour to be pretended in their Excuse. Of this Kindthere is Variety: As, The Fear of a Neighbour’s growing Wealthand Power; Conveniency of a Possession, to which yet no Rightcan be made out; Desire of a better Habitation; The Denial of common Favours; TheFolly of the Possessor; The Desire of extinguishing another’s Title, lawfully acquired,because it may be prejudicial to us; ? and many more.

And tho’ the most proper Way of Acting in War, is by that ofForce and Terrour, yet it is altogether as lawful to attack anEnemy by Stratagems and Wiles, provided that the Faith andTrust which you give him is inviolably observed. ¶ It is lawful to



VI.

Violence: L. N. N. l.8. c. 6 §7.

VII.

Solemn and lesssolemn War. L. N. N.l. 8. c. 6. §9.

VIII.

Power of makingWar. L. N. N. l. 8. c.6. §10.

IX.

Wars occasioned byprotecting ofRefugees. L. N. N. l.8. c. 6. §12.

deceive him by Stories and feigned Narrations, not by Promises and Covenants.

But concerning the Violence which may be used against him, andwhat belongs to him; we must distinguish betwixt what it ispossible for him to suffer without Injustice, and what we mayeasily inflict without the Breach of Humanity. Whoever declareshimself my Enemy, as he makes Profession by that very Act ofenterprizing upon me the greatest Mischiefs in the World; so at the same Time hefully indulges me the Leave to imploy the utmost of my Power, without Mercy,against himself. * Yet Humanity commands me, as far as the Fury of War will permit,that I do my Enemy no more Harm, than the Defence or Vindication of my Rightrequires, with Care to my Security for the Time to come.71

We commonly divide War into Solemn and less Solemn. To aSolemn War it is required, That it be made on both Sides by theAuthority of the Sovereign Governours; and preceeded by apublick Declaration. The other either is not publickly denounced,or, perhaps, is begun amongst private Persons. † To which latterHead belong also Civil Wars.

As the Power of making War, in all Nations lies in the sameHands, that are intrusted with the Government; ‡ so it is a Matterabove the Authority of a subordinate Magistrate to ingage in,without a Delegation from thence, tho’ he could suppose withReason, that were they consulted upon the Matter, they would bepleased with it.

Indeed all Military Governours of fortified Places and Provinces, having Forces underthem to command upon the Defence thereof, may understand it to be injoyn’d themby the very Design of their Imployments, to repel an Invader, from the Partscommitted to their Trust, by all the Ways they can. But they are not rashly to carry theWar into an Enemy’s Country.

In a State of Natural Liberty, a Person is assaulted by Force onlyfor the Injuries that are done by himself. But in a Community, aWar often happens upon the Governour or the whole Body, whenneither of them has committed any Thing. To make this appearjust, it is necessary, the Act of a Third Party must by some wayor other pass upon them. Now Governours do partake of theOffences, not only of their proper Subjects, but of others that occasionally flee tothem; if either the Offences are done by their Permission, or that they receive andprotect the Offender. The Sufferance of an Offence becomes then blameable, when atthe same Time that one knows of the doing it, he has a Power to hinder it. Thingsopenly and frequently done by the Subjects, are supposed to be known to theirGovernours; in whom it is always presumed there is a Power also to prohibit, unless amanifest Proof appears of its Defect. Yet to make it an Occasion of War, to giveAdmittance and Protection to a Criminal, who flies to us for the Sake only of escapinghis Punishment, is what must proceed rather by Virtue of a particular Agreement



X.

Reprisals. L. N. N. l.8. c. 6. §13.

XI.

Of Wars in theDefence of others. L.N. N. l. 8. c. 6. §14.

XII.

The Liberty of killing,&c. in War. L. N. N.l. 8. c. 6. §18.

XIII.

Of things taken inWar. L. N. N. l. 8. c.6. §20.

betwixt Allies and Neighbours, than from any common Obligation; unless theFugitive, being in our Dominions, contrives Hostilities against the Common-wealth hedeserts.

Another received Custom betwixt Nations, is, That the Goodsand Estate of every Subject may be answerable to make good theDebts of that State of which they are originally Members; as alsofor all that Wrong which that State may offer to Foreigners, orthat Justice it may refuse to shew them, insomuch, that theForeign Nation, whose Subjects have been thus injur’d by this State, may retaliate theWrong upon the Effects or Persons of such Subjects of this State, as may be foundamong them. And these Sorts of Executions are usually called Reprisals,* andcommonly prove the Forerunners of War. Those States who are the Aggressors, andgive just Cause for such Reprisals, ought to refund and make Reparation to theirSubjects upon whom they have thus brought Loss and Damage, by making themliable to have such Reprisals made upon them.

A War may be made by a Person, not only for himself, but foranother. In order to do this with Honesty, it is requisite, that Hefor whom the War is undertaken, shall have a just Cause; and hisFriend, a probable Reason, why he will become an Enemy to thatother for his sake. Amongst those, in whose Behalf it is not onlylawful, but our Duty to make War, there is, in the first Place, ourNatural Subjects, as well severally, as the universal Body of them; provided, that theWar will not evidently involve the State in greater Mischiefs still. Next, there are theAllies, with whom we have engaged to associate our Arms by Treaty: Yet, therein notonly giving the Precedence to our own Subjects, if they should chance to stand inneed of Assistance at the same Juncture; but presupposing also, that the Allies have ajust Cause, and begin the War with Prudence. * After our Allies, our Friends deserveto be assisted by us, even without our Obligation to do it by a special Promise. Andwhere there is no other Reason, the common Relation alone of Men to Men, may besufficient, when the Party imploring our Aid is unjustly oppressed, to engage ourEndeavours, as far as with Convenience we are able, to promote his Defence.

The Liberty that is in War, of killing, plundering, and laying allThings waste, extends it self to so very large a Compass, thattho’ a Man carries his Rage beyond the uttermost Bounds ofHumanity, yet in the Opinion of Nations, he is not to beaccounted infamous, or one that ought to be avoided by Personsof Worth. † Excepting, that amongst the more Civilized World,they look upon some particular Methods, of doing Hurt to Enemies, to be base; aspoisoning Fountains, or corrupting of Soldiers or Subjects to kill their Masters, &c.

Moveable Things are understood to be Taken in War then, whenthey are carried out of the Reach of the Enemy who beforepossessed them. * And Things immoveable, when we have themwithin our Custody so, that we can beat the Enemy away fromthence. Yet the Right of the former Possessor to retake the same,



XIV.

Conquest. L. N. N. l.8. c. 6. §24.

XV.

Truce L. N. N. l. 8. c.7. §3.

XVI.

Treaties of Truce.

XVII.

Treaties of Peace. L.N. N. l. 8. c. 8.

is never utterly extinguished, till he renounces all his Pretensions to them by asubsequent Agreement. For without this, it will be always lawful, by Force, to retrieveagain what by Force is lost. The Soldiers fight by the Authority of the Publick; andwhatever they obtain from the Enemy, they get it not for themselves, but properly forthe Community they serve. Only it is customary in most Places, to leave to them byConnivance the Moveables, especially those of small Value, that they take, in thePlace of a Reward, or perhaps instead of their Pay, and for an Incouragement to themto be free of their Blood. When Things immoveable that have been lost to, are retakenfrom the Enemy, they return into the Possession of the former Owners: † AndMoveables ought to do the same; but that amongst most People they are deliveredover and foregone as a Prey to the Army.

Empire72 also or Government comes to be acquired by War, notonly over the particular or single Persons conquered, but intireStates.‡ To render this lawful, and binding upon the Consciencesof the Subjects, it is necessary, That on the one Side the Subjectsswear Fidelity to the Conqueror; and on the other, that theConqueror cast off the State and Disposition of an Enemy towards them.

The Proceedings of War are suspended by a Truce; which is anAgreement (the State and Occasion of the War remaining still thesame as before,) to abstain on both Sides from all Acts ofHostility for some Time appointed. When that is past, if there beno Peace concluded in the Interim, they resume their Hostilitiesagain, without the Formality of a new Declaration.

Now Truces are either such as they consent to during theContinuance of the Expedition, whilst both Sides keep theirForces on foot; or those, on which they quite disband theirForces, and lay aside all Military Preparations. The first areseldom taken but for a small Time. The others they may and usually do take for aContinuance so long, as to carry the Face of a Peace; and sometimes also the veryName, with the Addition of some Term of Years, only to distinguish it from a perfectPeace indeed, which regularly is Eternal, and extinguishes the Causes of the War forever. * Those that they call tacit Truces, oblige to nothing. For as on both Sides theylie quiet for their Pleasure, so, whenever they think fit, they may break out into Actsof Hostility.

But when a Peace is mutually ratified by each SovereignGovernour, upon Articles and Conditions agreed betwixtthemselves, which they ingage to observe and put in Executionfaithfully by a Time prescribed; then a War is perfectly ended. †

In Confirmation whereof, it is usual, not only for both Parties totake their Oaths and interchange Hostages; but for some others oftentimes, especiallyamongst the Assistants at the Treaty, to undertake the Guaranty of the same, withPromises of Aid to him who ever is first injured by the other, in Contravention to theArticles of the Peace that is made.



I.

Alliances twofold. L.N. N. l. 8. c. 9. §1.

II.

Treaties of Peace. L.N. N. l. 8. c. 9. §2.

III.

Equal Leagues. L. N.N. l. 8. c. 9. §3.

IV.

Unequal. L. N. N. l. 8.c. 9. §4.

V.

Conditions put uponInferiours. L. N. N. l.8. c. 9. §5.


Chapter Xvii

Of Alliances

Alliances73 interchangeably passed betwixt SovereignGovernours, are of good Use both in Times of War and Peace. *They may be divided, in Respect of their Subject, either into suchas reinforce the Duty already incumbent on us from the Law ofNature; or such as superadd something to the Precepts of theLaw; at least, they determine their Obligation to such or such particular Actions,which before seemed indefinite.

By the first Sort are meant Treaties of Peace, wherein nothingmore is agreed upon than the simple Exercise of Humanitytowards one another, or a Forbearance of Mischief and Violence.Or, perhaps, they may establish a general Sort of Friendshipbetwixt them, not mentioning Particulars; or fix the Rules ofHospitality and Commerce, according to the Directions of the Law of Nature.

The others of the latter Sort, are called Leagues, and are eitherEqual or Unequal. Equal Leagues are so far composed of thesame Conditions on both Sides, that they not only promise whatis Equal absolutely, or at least in Proportion to the Abilities ofthe Person; but they stipulate in such a Manner too, that neitherParty is to the other obnoxious,74 or in a worse Condition.

Unequal Leagues are those, wherein Conditions are agreed uponthat are unequal, and render one Side worse than the other. † ThisInequality may be either on the Part of the Superiour, or else ofthe Inferiour Confederate. For if the Superiour Confederateingages to send the other Succours, unconditionally, notaccepting of any Terms from him, or ingages to send a greater Proportion of themthan He, the Inequality lies upon the Superiour. But if the League requires of theinferiour Confederate the Performance of more Things towards the Superiour, thanthe Superiour performs towards him, the Inequality there no less evidently lies on theSide of the Inferiour.

Amongst the Conditions required of an inferiour Ally, somecontain a Diminution of his Sovereign Power, restraining himfrom the Exercise thereof in certain Cases without theSuperiour’s Consent. Others impose no such Prejudice upon hisSovereignty, but oblige him to the Performance of those we calltransitory Duties, which once done, are ended altogether. As, todischarge the Pay of the other’s Army; to restore the Expences of the War; to give acertain Sum of Money; to demolish his Fortifications, deliver Hostages, surrender his



VI.

The Subject ofLeagues.

VII.

Real and personalLeagues. L. N. N. l. 8.c. 9. §6.

VIII.

Sponsions.75 L. N. N.l. 8. c. 9. §12.

Ships, Arms, &c. And yet neither do some perpetual Duties diminish the Sovereigntyof a Prince. As, to have the same Friends and Enemies with another, tho’ the other benot reciprocally ingaged to have the same with him: To be obliged to erect noFortifications here, nor to sail there, &c. To be bound to pay some certain friendlyReverence to the other’s Majesty, and to conform with Modesty to his Pleasure.

Both these Sorts of Leagues, as well Equal as the Unequal, arewont to be contracted upon various Reasons, whereof suchespecially produce Effects of the strongest and most bindingComplexion, as tend to the Conjunction of many Nations in aLeague that is to last for ever. But the Common Subject of theLeagues most in Use, is, either the Preservation of Commerce, or the Furnishing ofSuccours in a War, Offensive or Defensive.

There is another famous Division of Leagues into Real, andPersonal. The Latter express such a near Regard to the Person ofthe Prince they are contracted with, that whenever he dies, theyexpire also. Real Leagues are those, which not being entred intoin Consideration so much of any particular Prince or Governour,as of the Kingdom or Common-wealth, continue in full Force,even after the Death of the first Contracters of them.

The next in Nature to Leagues, are the Agreements of a PublickMinister, made upon the Subject of the Affairs of the Prince hisMaster, without Orders for the same; which are usually calledOvertures. The Conditions whereof impose no Obligation uponthe Prince, till he shall please afterwards to ratifie them by hisown Authority. And therefore, if, after the Minister has agreed upon the Compactabsolutely, he cannot obtain his Prince’s Confirmation of it; it lies upon himself toconsider, what Satisfaction he ought to render to those, who, depending upon hisCredit, have been deceived by him with insignificant Ingagements.



I.

Twofold. L. N. N. l.7. c. 8. §10.

II.

General.

III.

Towards theirGovernours.

IV.

The Common-wealth;

V.

One another.

VI.

Their special Duties.

VII.

The Duty of Privy-Counsellors.


Chapter XVIII

The Duty Of Subjects

The Duty of Subjects is either General, arising from theCommon Obligation which they owe to the Government asSubjects: Or Special, upon the Account of some particular Officeand Imployment, that the Government imposes upon them.

Their General Duty respects the Demeanour of themselvesseverally, towards their Governours, the Common-wealth,76 andone another in particular.

To their Governours they owe Honour, Fidelity, and Obedience.Beside that, they ought to entertain good and honourableThoughts of them and their Actions, and speak accordingly; toacquiesce with Patience and Content under the present State ofThings, not suffering their Desires to wander after Innovations;not adhering to any Persons, or admiring and honouring them, more than they do theMagistrates that are set over them.

In Reference to the Common-wealth, their Duty is, to prefer theHappiness and Safety of it to the dearest Things they have in theWorld: To offer their Lives, Estates and Fortunes withChearfulness towards its Preservation, and to study to promoteits Glory and Welfare by all the Powers of their Industry and Wit.

Towards one another, their Behaviour ought to be friendly andpeaceable, as serviceable, and as affable as they can make it; notto give Occasion of Trouble by Moroseness and Obstinacy, norenvying the Happiness of any, or interrupting their lawful andhonest Injoyments.

And as for their peculiar Duties, as Officers, whether theyinfluence the whole Body of the Nation, or are employed onlyabout a certain Part of it, there is this one general Precept to beobserved for all; That no Person affect or take upon him anyImployment, of which he knows himself, by the Sense of his Disabilities (whetherWant of Strength, Skill, Courage, &c.) to be unworthy and uncapable.

Particularly, let those who assist at the Publick Counsels, turntheir Eyes round upon all Parts of the Common-wealth; andwhatever Things they discover to be of Use, thereuponingenuously and faithfully, without Partiality or corruptIntentions, lay open their Observations. Let them not take their



VIII.

The Clergy.

IX.

Publick Readers.

X.

Lawyers.

XI.

Officers of the Army.

XII.

Soldiers.

own Wealth and Grandure, but always the publick Good, for the End of theirCounsels; nor flatter their Princes in their Humours to please them only. Let themabstain from Factions and unlawful Meetings or Associations; dissemble not anything that they ought to speak, nor betray what they ought to conceal. Let themapprove themselves impenetrable to the Corruptions of Foreigners; and not postponethe publick Business to their private Concerns and Pleasures.

Let the Clergy, who are appointed publickly to administer in theSacred Offices of Religion, perform their Work with Gravity andAttention; teaching the Worship of God, in Doctrines that aremost true, and shewing themselves eminent Examples of whatthey preach to others; that the Dignity of their Function, and the Weight of theirDoctrine, may suffer no Diminution by the Scandal of their ill led Lives.

Let such who are publickly imployed to instruct the Minds of thePeople in the Knowledge of Arts and Sciences, teach nothing thatis false and pernicious; delivering their Truths so, that theAuditors may assent to them, not out of a Custom of hearing, butfor the solid Reasons that attend them: And avoiding all Questions which incline toimbroil Civil Society; let them assure themselves, that whatever human Science orKnowledge returns no Good to us, either as Men or Subjects, the same deserves theirCensure as impertinent Vanity.

Let those Magistrates, whose Office it is to distribute Justice, beeasie of Access to all, and ready to protect the Common Peopleagainst the Oppressions of the more mighty; administring Justiceboth to Rich and Poor, Inferiour and Superiour, with a perfectEquality. Let them not multiply Disputes unnecessarily; abstain from Corruption; bediligent in trying of Causes, and careful to lay aside all Affections that may obstructSincerity in Judgment; not fearing the Person of any Man while they are doing theirDuty.

Let the Officers of War diligently Exercise their Men on allOccasions, and harden them for the enduring the Fatigues of aMilitary Life, and inviolably preserve good Discipline amongthem. Let them not rashly expose them to the Danger of theEnemy, nor defraud them of any of their Pay or Provisions; but procure it for themwith all the Readiness they are able, and keep them in the Love of their Country,without ever seducing them to serve against it.

On the other Hand, let the Soldiers be content with their Pay,without plundering, or harrassing the Inhabitants. Let themperform their Duty couragiously and generously, in the Defenceof their Country; neither running upon Danger with Rashness,nor avoiding it with Fear: Let ’em exercise their Courage upon the Enemy, not theirComrades: And maintain their several Posts like Men, preferring an HonourableDeath before a Dishonourable Flight and Life.



XIII.

Ambassadors andEnvoys.

XIV.

Officers of thepublick Revenues.

XV.

The Continuance ofthe Duties aforesaid.L. N. N. l. 8. c. 11.

Let the Ministers of the Common-wealth in foreign Parts, becautious, and circumspect; quick to discern Solidities fromVanity, and Truths from Fables; in the highest Degree,Tenacious of Secrets, and obstinately averse to all Corruptions,out of their Care of the Good of the Common-wealth.

Let the Officers for Collecting and Disposing of the PublickRevenue have a Care of using needless Severities, and ofincreasing the Subjects Burthen for their own Gain, or throughtheir troublesome and petulant Humours. Let them misapplynothing of the publick Stock; and satisfie the Persons who haveMoney to be paid out of it, without Delays unnecessary.

All these Particular Duties of Subjects, continue during the Timeof Employment: And when that ceases, the other expire also. Buttheir General Duties are in Force, so long as ever Men continueto be Subjects; that is, ’till by either the express or tacit Consentof the Nation, they depart thence, to fix the Seat of their Fortuneselsewhere; that they are banished and deprived of the Rights ofSubjects for their Crimes; or, being overcome in Battle, they are forced to yield to theDisposal of the Conqueror.

The END




Two Discourses And A Commentary By Jean Barbeyrac

Note On The Translation

The eighteenth-century dissemination of Pufendorf’s Latin works owed not a little tothe French translations, notes, and commentaries of Jean Barbeyrac. These had someimpact, for instance, on the English editors of the 1716/35 edition of The Whole Dutyof Man. Publicist and apologist that he was, Barbeyrac nonetheless had a mind of hisown on certain key issues in the intellectual debate generated by postscholasticProtestant natural law. The three writings here, translated into English for the firsttime—the celebrated defense of Pufendorf against Leibniz in the Judgment of anAnonymous Writer, together with the Discourse on What Is Permitted by the Laws andthe Discourse on the Benefits Conferred by the Laws—contribute both to Barbeyrac’sstatus as Pufendorf’s publicist and to his own standing as a natural law thinker. Thesethree writings, which appeared as appendices in the fourth edition of Barbeyrac’stranslation of the De officio, Les Devoirs de l’Homme et du Citoien, published inAmsterdam in 1718, are thus reunited in the present volume with Pufendorf’s text.

The reader will note that the Judgment of an Anonymous Writer constitutes atriangular exchange among Leibniz (the “Anonymous Writer”), Pufendorf (“ourauthor”), and Barbeyrac (in his own first-person voice). In fact, Leibniz’s words havealready been made available in English, in Patrick Riley’s 1972 translation from theoriginal Latin.1 However, the continuous uninterrupted prose of that translation wasnot at all the form in which Barbeyrac’s readers encountered the exchange. AsBarbeyrac informed them at the start of his translation of the German philosopher’sattack, he had broken Leibniz’s prose into twenty paragraphs, to each of which hethen provided an appropriate response (some directly contradicting Leibniz, someconceding ground, some revising Pufendorf ). Whereas Barbeyrac indicated Leibniz’swords by use of quotation marks, we have thought it more convenient to print them initalics. Also, we have translated Leibniz’s critique as it was presented in Barbeyrac’sFrench, to capture the integrity of the latter’s triangulation of positions in this earlymodern debate on natural law.

The Discourse on What Is Permitted by the Laws and the Discourse on the BenefitsConferred by the Laws were originally delivered in French by Barbeyrac in hisofficial capacity as Rector of the Lausanne Academy, in 1715 and 1716, respectively.Unusually for academic orations, each was published (and republished) in the year ofits delivery before being included in the 1718 edition of Les Devoirs.2 It might seemto contradict the very point of his translation of the Latin of Pufendorf (and ofLeibniz) into French for a spreading Protestant Francophone readership, but, as thereader will see below, Barbeyrac loaded the Discourses and the Judgment with Latinquotations, especially in the notes. His purpose was both practical and symbolic: toprovide the Latin original as a means for readers to check the accuracy of hisrendering (of both classical sources and of Leibniz), and to display the toweringhumanistic erudition of a natural law scholar whose library would grow to contain ten



thousand volumes. In fact, for the most part, the Latin texts cited in Barbeyrac’s noteshave their translation or paraphrase in the body of his text (which is here translatedinto English). However, in the fewer instances in which lengthy and interesting Latinnotes do not have this English accompaniment, we have included an Englishtranslation.3




The Judgment Of An Anonymous Writer On The Original OfThis AbridgmentWith Reflections Of The Translator, Intended To Clarify CertainOf The Author’S Principles

[379] There fell into my hands, a year or so ago, a Latin letter in which an anonymouswriter1 gives his opinion on this abridgment, De Officio Hominis et Civis. The letter,which appeared in print in 1709, forms part of an academic program in which JustusChristoph Böhmer, a professor at Helmstadt,2 gave notice of twelve publicdisputations on the system of natural law that our author, Samuel Pufendorf, publishesin this short book. Anonymous, who is described as an “Illustrious Man,” doubtlesshad reasons for not revealing his identity. He feared, perhaps, that he would besuspected of wanting to denounce, as if out of [380] personal envy, a work that hasenjoyed such general esteem. Perhaps for this same reason he preferred to publish histhoughts only within the context of an academic program, in other words in a printedform that has rather a limited dissemination. Or perhaps he never even thought thatsuch a use would be made of the letter that the Helmstadt professor has releasedwithout seeking permission.3 Whatever the case, since his name has now beenpublished, I trust there will be no offence to its author’s modesty if I give it a yetwider dissemination,4 not just by another reprint but by translating the work into oneof the best known of modern languages. I shall not seek to draw aside the curtainbehind which the anonymous writer is hidden, but leave each reader free toconjecture.

I shall do no more than record how, in reading his letter, I discerned the marks of apenetrating mind, one that was far from allowing itself to be swayed by the judgmentof other men. I congratulated myself on the happy chance which had brought such a[381] tract to me, from such a distance, a tract of which not only had I heard nomention, even when I was living much nearer to the place where it appeared, butwhich must still be as rare as it is little known. Since I already knew that I wouldshortly have to deliver to the printer the abridgment, Les Devoirs de l’Homme et duCitoien, I resolved to adorn this new edition of my translation with the anonymouswriter’s Judgment of the original, attaching to it my comments. This could contribute,it seemed to me, to a greater awareness that, if the work he criticizes is not withoutfault, since few are, it is all things considered nonetheless a good work.

I will confess once more the pleasure I had in discovering that I had anticipated theanonymous writer in respect of certain matters concerning which I had already writtenthat I too was not entirely pleased with my author’s thinking. This led me to hope thatit would not be taken amiss were I to defend him on other matters. If I so succeed, Itake no great pride in it. Nor [382] do I in any way set myself alongside this“Illustrious Man” who, it appears, is a great genius. If, as he tells us, he had not readfor a considerable time the work he is examining, and if it was doubtless just as longsince he had read my author’s other works, it should come as no surprise that he hadnot understood my author’s principles as well as I, who have committed such labor to



winning understanding for them. I shall therefore translate the letter in question, not ina continuous form but by interposing my reflections, to the extent that I shall haveoccasion. However, there will be no confusion. The separate elements of this littlepiece, that I shall number for the convenience of references and quotations, will beclearly distinguished by [italics], thanks to which it will be easy to recombine theseelements should one wish to read the entire letter without interruption. I shall attemptto express the anonymous writer’s thoughts with the utmost exactitude; and I shallrecord in the margin, or in footnotes, the exact terms of his original, whenever I fear Imight not have caught the sense, or for some other reason. Here follows the preamble.

I. You ask me, Monsieur,5on behalf of a friend of yours, for my judgment on thetreatise, Les Devoirs de l’Homme et du Citoien, written by Samuel Pufendorf, a manwhose merit made him famous in his lifetime.6I have glanced [383] at this work, itbeing long since I had consulted it, and I found considerable defects in its principles.However, since most of the thoughts developed in the work have scarcely any linkwith the principles, not being logically derived from the principles as from theircauses but rather being borrowed from elsewhere, from a variety of good authors,nothing prevents this little book from containing numerous good things, or fromserving as a compendium of natural law for such persons as are content with asuperficial knowledge, as is the case with most of the public, and who do not aspire toa deeper understanding.

It would surely be a grave fault, or rather a fault that would render the work inquestion inappropriate to its author’s purpose, if it was nothing but a kind ofrhapsody, scopae dissolutae, arena sine calce, as it seems to be represented here. ButI leave it to the public to judge whether, for all the faults one may find in the systemof natural law outlined here and now known throughout most of Europe, one does notin general discern in it both fairly sound principles and a fairly clear link between thefundamentals of each particular topic and these principles. I admit that the whole isnot arranged in the manner of the geometers, with Issues, Definitions, Axioms,Corollaries, etc., but their dry method is in no way necessary in every field ofknowledge, and less so in those fields concerning manners than in any other. To bringto bear a geometric mind is enough, that is to say a precise mind,7 and this does notalways depend on [384] a deep study of the abstract sciences: an orderly mind, preciseand sharp, attentive to following the plan that has been adopted without admitting anymajor principle that is either false or doubtful or drawing a wrong consequence thatcannot be traced back, from principle to principle, to the most general. I hope todemonstrate clearly, in examining what our anonymous writer says below against theprinciples expounded by my author, that, all in all, these principles are indeed well-grounded. And as for the consequences, let us take what chapter we will, and I daresay that we shall quickly be convinced—if we read him carefully—by our author’sbreadth of reasoning on some truth that follows, directly or indirectly, from thegeneral principles informing the work as a whole. It would be easy to show this by afull analysis: but that would go beyond the scope of my reflections, and besuperfluous, given the book itself, where those who read the work can undertake theanalysis for themselves.



II. My wish, nevertheless, would be for a stronger and more solid work in which onecould find rich and illuminating definitions; in which the conclusions would followlogically [veluti filo] from correct principles; in which the grounds of all actions andexceptions in accord with nature were set down in order; and in which, finally,nothing would be neglected of what is required by those beginning their studies ofnatural law in order to furnish themselves with what may have been omitted, and todetermine according to rules and principles [determinata quaedam via] the questionsthat are posed. For this is [385] what we expect of a complete and well- orderedsystem.

For myself, I would wish that Anonymous was himself willing to give us a work suchas he conceives a good system of natural law to be. He is without doubt more capablethan anyone of fulfilling the program that he has proposed. My only fear, with regardto the “actions and exceptions in accord with nature” of which he appears to insinuatethere are many, is that he may be confusing the subtleties of the civil law of theRomans with the simplicity of the natural law. We must take care lest we repeat herewhat happens when someone, offended by a few irregularities in a building that isotherwise solid and well-conceived, rather than seeking to remedy as best they can theinconsiderable faults, chooses instead to demolish the whole edifice and draw up anew plan, which in various ways could turn out to be far more defective.

III. One might have anticipated something like the sensitive judgment and immenseerudition of the incomparable Grotius, or the profound genius of Hobbes, if only theformer had not been sidetracked by the many concerns that prevented him doing whathe could have done on this topic, or if the latter had not proposed bad principleswhich he then followed all too closely. Felden [Jean de Felde, in Latin, Feldenus] toocould have given us something better and more complete than what is commonlytaught, had he chosen more fully to apply his mind and knowledge.

I am not sufficiently acquainted with the last of these authors to judge whether hedeserves the praise accorded to him; [386] nor do I know whether what he publishedon Grotius could lead us to attribute to him the capacity for something like the work atissue.8 As for Grotius, it must be recognized that he is the first to have systematized ascience that, prior to him, was nothing but confusion and, more often than not,impenetrable darkness. With the result that it was scarcely possible this great manshould have done more, above all in the times in which he lived. It can thus be saidthat his excellent work, Droit de la Guerre et de la Paix, provided a wealth of startingpoints sufficient to guide all who have subsequently worked, or who will do so in thefuture, to produce something more exact and complete.

IV. It would also be most useful to introduce into a system of natural law the parallellaws in the civil law [parallela juris civilis &c.] as recognized among men, above allthe civil law of the Romans, and of the divine law also. In this way, theologians andjurisconsults could more easily make use of natural law; whereas, due to the mannerin which natural law is taught, it consists more in theory than in practice [magissermonibus celebratur, quam negotiis adhibetur], and finds little application in thebusiness of life.



[387] Grotius, in the book of which we have just spoken, and Pufendorf, in his greatwork De Jure Naturae et Gentium, frequently drew the comparison that Anonymousfinds so useful. But I fail to see that it is so necessary in a system such as that inquestion, which must be designed for the needs of beginners and, as a result, shouldcontain only the elements of the science. The admixture he proposes might rather beharmful, to the extent that it confused the picture, there being few civil laws that donot add something to natural law or otherwise change it. When one learned of naturallaw only those elements that appeared, piecemeal, in the civil law of the jurisconsults’books, the ideas that one formed whether of natural law or civil law were anything butaccurate. The truth of the matter is that before undertaking a comparative study, onemust first gain a solid knowledge of natural law alone, only then proceeding to acomparison with the civil law, through study of the laws particular to each country. Inthis way there is no fear of confusion: it is simply a case of recalling and applyingprinciples that one has already learned. This is the reason behind our author’s projectof constructing a kind of Index on the books of Roman law, to distinguish that whichbelongs to natural law [388] from that which belongs to positive law. And we canonly wish death had not prevented him from executing this project, as well as certainothers, of which he speaks in the Preface to the second edition of his major work. Ifthe jurisconsults and theologians make little use of natural law in deciding theparticular cases with which the affairs of life confront them, this is scarcely because instudying natural law they did not compare it with the civil law of all peoples on earth.Rather, truth be told, it is because most of them never studied natural law or, if theydid, they studied it wrongly.

V. However, since we still lack a work presenting what a good system of natural lawought to be, as I have just said, and since Pufendorf’s abridgment is, amongst us, thebest known instance of the genre, in my view it is right to give readers and listenerssome warnings, particularly with regard to the principles most liable to abuse. Themost important thing, in this respect, is that the author seems to have correctlyestablished neither the end and the object of natural law, nor its efficient cause.

Here revealing himself as German, Anonymous could have added that it is not only inGermany that the work which he finds so defective is considered one of the best oreven the very best of its genre. Elsewhere, it is regarded [389] similarly, includingamong nations that are somewhat too liable to discount what comes from abroad,especially from certain countries. I shall not speak of the manner in which the Frenchtranslation was received: but I can confirm that prior to this fourth edition, there was afourth edition of the English translation,9 which was in fact a fifth, since from what Ilearn this little work was included in its entirety in an abridgment of the De JureNaturae et Gentium that has just appeared.10

VI. The author states explicitly that the “end of the science of natural law lies withinthe limits of this life” [Preface, §.6 of the French Translation; §.8 according to thedivision of the last editions of the original]. And since he clearly saw the possibleobjection that the immortality of the soul can be demonstrated by natural reason andthat, regarding law and justice, the consequences of this pertain to the science of lawas understood in the light of natural reason, the author answers at this same point:“Indeed, man sighs impatiently for immortality, and cannot envisage without horror



the destruction of his being, and as a consequence even most of the pagans believedthat the soul survives its separation from the body, and that the good are rewardedand the wicked punished; but it is only the word of God which can enlighten us onthis, and give us the assurance that produces a faith that is whole and all-embracing.” That is what the author says. But, even supposing true what is in factfalse, namely that natural understanding does not furnish a perfect demonstration ofthe soul’s immortality, it would always satisfy a wise man that the proofs derived fromreason are at least weighty, and serve to give good people great hope for another lifebetter than this one, and to inspire in the wicked a just fear of dire punishment tocome. For when it is a matter of a great evil, one should take steps to guard against it,even though one has small reason to fear it, but especially when one is most likely tobe exposed to it. Nor must one disregard reason supported by the consensus of almostall peoples on this matter, or reason that reflects the natural desire for immortality.But a strong argument, recognized by all, not to mention other more subtlearguments, is furnished by sheer knowledge of God, a principle that our authorcorrectly accepts and establishes as one of the foundations of natural law. For itcould not be doubted that the supreme ruler of the universe, most wise and mostpowerful, has resolved to reward the good and punish the wicked, and that He willexecute His plan in the life to come, since in this life as we manifestly observe Heleaves most crimes unpunished and most [391] good actions unrewarded. Thus hereand now to neglect consideration of the next life, inseparably linked as it is to divineprovidence, and to rest content with a lower degree of natural law valid even for anatheist [inferiore quodam juris nat. gradu, qui etiam apud atheum valere possit], (Ihave treated this question elsewhere),11would be to deprive this legal science of itsfinest part and, at the same time, to destroy many of this life’s duties. Indeed, whywould one expose oneself to loss of property, of honor or even of life itself on behalfof those who are dear to us, or on behalf of country, or state, or to uphold law andjustice, when one could be at ease, and live among honors and wealth, at the expenseof others’ prosperity [eversis aliorum rebus]? For would it not be the height of follyto prefer real and solid goods to the simple desire to immortalize one’s name afterdeath, that is, to be spoken of in a time from which one no longer draws anyadvantage? The science of natural law, explained according to Christian principles(as Praschius has done),12or even according to the principles of the truephilosophers, is too sublime and too perfect to measure everything against theadvantages of this present life. What is more, unless one is born with such adisposition or brought up in such a way that one takes great pleasure in virtue andfinds great distress in vice, [392] which is not everyone’s good fortune, nothing willbe able to prevent one from acting most criminally when, by crime, one can acquiregreat wealth with impunity. Should “one hope to go undiscovered, one will profanethe most sacred things.”13But no one will escape divine retribution, which extendsbeyond this life to the life to come. And this is a sound reason to make menunderstand that it is in their interest to practice in full the obligations that the lawimposes on them.14

I had already observed in the first edition of my translations both of the major work,De Jure Naturae et Gentium [Book II, chap. iii, §.21, note 6 of 1st Edit., note 7 of 2ndand 3rd Edit.] and of its abridgment De Officio Hominis et Civis [note 1, §.6 ofPreface], that all consideration of the life to come must not be excluded from natural



law. In order to show this, I adopted the same argument that Anonymous uses,following others. Our author has never denied the principle on which this argumentrests: far from it, he recognizes it himself, in that part of his major work where,concerning the choice of advantageous things [De Jure Naturae et Gentium Book I.chap. iii. §.7],15 he cites a passage from Arnobius [In my translation these passageswere transposed to note 5] and refers to Pascal’s fine chapter on the issue.

I do not examine here whether the proofs that human reason alone offers of theimmortality of the soul, and of the rewards and punishments of another [393] life,have demonstrative force, as Anonymous submits. Nor do I examine whether thecontrary might not appear with the instance of the wisest heathens, who could onlyspeak of this important truth without full knowledge, even though they had discoveredthe very reason which is asserted here, and which is indeed the strongest of all.16 Itsuffices for me to observe that Anonymous proceeds to argue in such a manner as toreveal that he lacks accurate and consistent ideas as to the nature and force particularto duty. Whereas our author’s slight omission can be excused on the grounds that hewas led to it by his noble conception of the impressions surely made by the mere sightof law on the heart of any reasonable person. Anonymous evidently confuses duty andthe effects or the motivations that observing obligation produce; that is, he confusesthe immanent force of duty and the impact that it has on men’s spirit, given the make-up of the majority. Absent consideration of reward and punishment in the life tocome, so he claims, one would have no reason not only to “expose oneself to loss ofproperty, honor or even life itself on behalf of those who are dear to us, or on behalfof country, or state, or to uphold law and justice,” but one could even “be at one’sease, and live among honors and riches, at the expense of others’ prosperity,” or bydoing whatever harm one can to others so as to destroy their business and bring themto despair. For that is what [394] is entailed by the expression in the original, eversisaliorum rebus, far stronger than that of my translation. Without the prospect of ahappy immortality after this life, so he supposes, one’s practical conduct couldmeasure up to one’s duty only through desire for an illusory immortality. Accordingto our author’s principles, one is obliged not only not to harm others, in order toprocure some benefit to oneself, but also sometimes to sacrifice one’s property, one’shonors and even one’s life, regardless of the prospect of rewards and punishments inthe life to come,17 and for the simple reason that these are duties imposed on us bythe wise author of natural law, by the sovereign leader of the universe. Which of thesetwo moral codes, I beg you, is the purer, the more noble? Which most conforms to theideas of the heathen wise, who distinguished so well between the virtuous and theuseful? But how can we reconcile Anonymous’s argument with his statement thatthere is a “degree of natural law valid even for an atheist”? Or with what he furthermaintains below, in section 15, namely that “there would still be a natural obligationeven were one to allow that there is no God”? If ever there was a palpablecontradiction, this is it. For, once you postulate that there can be some obligation,properly so-called, some indispensable necessity to act or not to act in a certainmanner, independently not only of the life to come but also of the existence of God,then all duties—excepting those directly concerning God Himself—are in place,since, as Anonymous recognizes (section 13), they all have a real foundation “in thevery nature of things.” See my comment on section 15.



So in seeking to pick our author up on a simple omission, Anonymous has put himselfinto difficult straits. There are clearly two different questions: Why is one obliged todo or not to do certain things? And: What is the motive best able to drive men topractice what they recognize as their duty? As to the latter question, we easilyrecognize that the motive of utility—above all, the punishments and rewards of thelife to come—is what determines the greatest number of people. From this we seehow greatly men needed a clear and certain revelation of the state of the life to come.A revelation, nonetheless, whose goal is not to bring men to virtue or to turn themfrom vice solely on consideration of their interest, but rather to lead them in this waylittle by little to fulfil their duty for a nobler motive: to find in the practice of virtuethis profound pleasure, of which Anonymous speaks, the pleasure that is produced notby the prospect of rewards or less still by the prospect of punishments in the life tocome, but by long and deep reflection on the sheer beauty of virtue. For there arewicked persons who are struck by the fear of ills and the hope of good to come, butwho for all that remain insensible to the pleasure of the practice of virtue, or to thehorror of vice. They desire [396] eternal happiness, yet remain far from loving thatwhich alone can lead them there, and which for its own sake merits our love.

Considering utility alone, we would still have good reason to commit ourselves tovirtue, and to flee from vice, regardless of the rewards and punishments in the life tocome. Of itself, virtue is certainly more fitted than vice to render us happy in thisworld. And in the normal course of things, there is far more evidence that we gain asolid advantage from living a good life, rather than letting ourselves lapse intodisorder, as our author judiciously remarked in his major work [Book II, chap. iii,§.21], where I included a very fine passage from Isocrates on this topic [note 4]. Thequestion has been discussed very fully by various authors.

VII. Nor, therefore, must we admit what the author insinuates, namely that theinternal actions of the soul, which lack external manifestation, lie beyond thejurisdiction of the science of natural law. Having cut short its end, he now evidentlyseeks to restrict its object too narrowly. For after stating, at the end of paragraph 8,that “the maxims of natural law apply only to the human tribunal, which does notreach beyond the limits of this life,” he then adds at the start of the followingparagraph that “the human tribunal deals only with man’s external actions, and thatit cannot penetrate internal actions save insofar as they manifest themselves in someeffect or some external sign.” Hence he does not trouble himself with them. Whateverlies beyond, the author relates to “moral theology, the principle of which is [397]revelation” (§.4) [§.1 of the translation], and which is the discipline that “forms theChristian man” (§.8) [§.6]. Here he adds that “regarding certain things the maximsof natural law are wrongly applied to the divine tribunal, the rules of which lieprincipally within the jurisdiction of theology.” This is why, he says in the followingparagraph, “for moral theology it is not sufficient to regulate man’s conduct toconform to external propriety,” (as if this was the whole concern of those who teachmoral philosophy or natural law!), “but it seeks above all else to regulate the heart,such that the heart’s every movement conforms exactly to the will of God. Moraltheology condemns in particular those actions which on the outside appear correctand beautiful but which flow from a bad principle or an impure conscience.” Ittherefore pertains to theologians alone, according to our author, to treat this whole



matter. Yet we see that not only Christian philosophers, but also the ancient pagans,made this the subject of their precepts, such that even pagan philosophy is in thisregard more wise, more severe and more sublime than the philosophy of our author. Iam astonished that despite the great enlightenment of our century this celebrated mancould have uttered things as absurd as they are paradoxical [non minus paraloga,quam paradoxa].

But softly, please. Parcius ista viris tamen objicienda memento, etc. When it is aquestion of a person whose merit is undeniable, we should—it seems to me—beforeaccusing him of advancing absurdities be sure to have examined thoroughly whetherthere is not a way to give a positive turn to his thoughts. I am myself astonished that[398] Anonymous, in transcribing so many passages, failed to take note of somethingessential which lies between two of those he quotes and which would have forced himto step back from his astonishment and to moderate his zeal. In paragraph 9(paragraph 7 in my translation) it is explicitly stated that “natural law is concerned inlarge measure to form men’s external actions.”18 What is more, in one of thepassages that Anonymous actually cites, does not our author say that the rules of thedivine tribunal, whose jurisdiction is over internal actions, “are principally theconcern of moral theology”?19 According to our author, then, there is some otherscience, a natural science, which does not neglect these rules governing internalactions. Note should also have been taken of what our author says in his major work(Book I, chap. viii, §.2) and in this present abridgment (chap. ii, §§.11 and 12). Itshould have been recalled that he treats the issue of conscience and its different kinds(Book I, chap. i, §.5 et seq.). But this only serves further to show decisively just howunfounded is Anonymous’s censure. Only the author of an action can know and judgefor sure whether that action is morally good internally, as well as externally. On thisno other person ever has anything but signs to go on, and these are notoriouslyequivocal. Now one learns natural law in order to judge the actions of others, as wellas one’s own. In consequence, the application of the rules of natural law [399] mostoften has to be limited to the external act.

As is clear from the very passages that Anonymous cites, our author’s wish is to speakof this application to actions whose principle we can penetrate only through someeffect or some external sign. His wish is to speak of those things that the humantribunal can know. Moreover, is it not true that the greatest number of natural lawsturn on what men have a right to require one of another? Now this right does notextend beyond the external act. Once one has done in this regard all that one wasrequired to do, whether the internal act was as vicious as you please, nobody can askany more of us, nor, finally, must they do so, even though the internal principle of theaction by which one has acquitted oneself of what was required had something aboutit that the divine tribunal and our own conscience would condemn. The author doesnot exclude from the ambit of natural law that judgment which each can and mustexercise over their own actions, to assure oneself that they are good and innocent inall respects. Rather, he simply generalizes this judgment as the application of the rulesof natural law to particular cases, in consideration of the morality of this or that actionon some person’s part.



VIII. The Platonists, the Stoics and even the poets taught that the gods must beimitated, that one must offer to them “a heart shot through with sentiments of justiceand [400] honesty.”20Nor was it to a philosopher, but to a jurisconsult of the civillaws that Cicero attributes the idea of resting content with externalities, when he saysthat the laws concern themselves only with what is palpable, whereas philosophersconsider rather what only the light of an acute reason can uncover. Will Christiansnow allow the philosophy that was so holy and noble in the hands of the pagans todegenerate to such an extent? Certain ancient authors complained that Aristotle wastoo lax [de laxitate Aristotelis]: but he lifted himself far higher than our author, andthe schools correctly followed him in this. For Aristotle’s philosophy embraces allvirtues in the idea of universal justice. We are surely obliged, not only for our ownsake but also on behalf of society, and above all with regard to the society we havewith God through the natural law written in our hearts, to fill our spirits with trueknowledge, and to direct our wills always toward that which is right and good.

These reflections are all as ill-directed as they are commonplace, and they remaininseparable from an invective based entirely on the false assumption of which I havejust spoken. Has Anonymous forgotten that, in the Chapter “On duty to oneself,” ourauthor seeks above all to have us see that natural law [401] wants each of us to workat forming his mind and his heart by filling the former with true and usefulknowledge, and by ruling the inclinations of the latter? The passage that we areoffered from Cicero is not taken here in its proper sense.21 For Cicero it is a questionneither of purely internal acts nor of external actions considered as being or not beingthe effect of a good internal disposition, but simply of certain injustices or certainmore sophisticated frauds unpunished by the civil law, despite being outwardlymanifest, as well as other cruder ones. This is clear from all the prior and subsequentarguments and examples. Immediately before the formulation in question, the Romanorator had just spoken of those who do not reveal in good faith to a buyer the faultsthey know to exist in the thing they are selling.

IX. The author recognizes that oaths have great force in natural law; yet I do not seewhat place they can have in this science, if natural law does not concern that which isinternal.

This remark appears to have been added subsequent to the composition of the letter asa whole, and is therefore badly placed, interrupting the flow of the argument, asanyone can see. Anonymous continues to assume, mistakenly, that according to ourauthor consideration of acts internal to the soul in no way falls within the ambit ofnatural law. Yet, surely, do not oaths [402] essentially embrace an exterior as well asan internal act? The force of the exterior act, I admit, derives from the disposition ofthe one who swears the oath. But, aside from the fact that this disposition, by veryvirtue of being internal, remains hidden from other men who can only presume as toits nature, is one not obliged to keep an oath that has been sworn as to somethingneither illicit nor invalid, even though one did not intend to swear? And would it notbe very bad form to swear to an illicit subject, even though one only mouthed theoath?



X. This is why those responsible for directing the education or instruction of othersare obliged, by natural law, to give them the taste for sound precepts and to orientthem so as to acquire a habit of virtue which, like a second nature, will guide theirwills toward the good. This is the best method of effective teaching, for, as Aristotlerightly observed, manners are stronger than laws.22Although difficult, it may happenthat hope or fear make a sufficient impression to prevent evil thoughts leading toanother’s harm, but these motives alone will never lead people to doing good. Thusan ill-disposed man will sin not least by failing to do what he should do. So it isdangerous, or at best [403] unrealistic, for our author to imagine a corrupt heart, theexternal actions of which are entirely innocent.23

This is called singing the same song, eadem oberrare chorda. One has only to look atwhat our author says in this abridgment (Book II, chap. iii, §.2 and chap. xi, §.4), notto mention his major work, where he expands considerably on this topic. Then onewill be amazed to find so many wasted words in so slight a piece as is this letter byAnonymous.

XI. I admit that some scholars—and they deserve our admiration for this—haverectified this harsh and reprehensible opinion [sententiam duriorem &reprehensionibus obnoxiam &c.], although in other respects they follow our author’sdoctrine. Thus they have attributed to moral philosophy or to natural theology thatwhich they exclude, as he does, from the sphere of natural law, namely theconsideration of internal actions. But it cannot be denied that law and obligations,sins committed against God and good deeds in His sight alone, by their nature involveinternal actions.24Where, I ask you, should we treat of these things, which areunquestionably elements of law and natural justice, if not in the science of naturallaw? Unless one wishes to imagine another universal jurisprudence that embraces therules of natural law both in relation to men and in relation to God, though this ismanifestly vain and redundant.

[404] There is nothing more arbitrary than the division of the sciences. Provided thateverything belonging in those sciences which have some common relationship finds aplace in one or another of them, and provided that in treating a particular sciencewhose boundaries have been specified nothing essential has been omitted from thescope as prescribed, no one can ask more. Now here is our author’s own response, onethat he gave long ago. From this it will be clear that, in what Anonymous calls a“rectification” of Pufendorf’s opinion, the latter’s partisans have simply followed hisideas: “Whosoever has read my book De Jure Naturae et Gentium with a fair mind,”he says in Specimen controversarium (chap. v, §.25), “and not with an intent toquibble or to defame me, will easily recognize that the principal task I set myself wasto explain the mutual duties men have to one another and the law that exists amongthem. On this matter, it is clear, no more fitting principle could be found thansociability. And therefore, in this work, there is no chapter on natural religion, whichbelongs to the natural science that concerns divinity, a science that some attach to thefirst philosophy, others to natural theology, since it is the part of the natural sciencesthat concerns divinity. Later, however, when I had to offer for the young anabridgment of De Jure Naturae et Gentium, I borrowed from natural theology or, ifyou will, from first philosophy, a chapter on natural religion for inclusion in this short



work.” Given such a declaration, which was not made yesterday, our author should bewell protected against the arrows of a less than temperate critique. [405]

XII. In the science of law, moreover, if the wish is to give a complete idea of humanjustice, this must be derived from divine justice, as from its source. The idea of thejust, like that of the true and the good, pertains unquestionably to God, and more toHim than to men, since He is the measure of all that is just, true and good [tamquammensuram ceterorum &c.]. Divine justice and human justice have common rules,which can doubtless be reduced to a system [communesque regulae utique inscientiam cadunt &c.]; and these rules must be taught in universal jurisprudence, theprecepts of which also pertain to natural theology. Thus we could not approve thosewho wrongly restrict the scope of natural law, even though this error is not dangerousas long as one transfers to another area of philosophy consideration of internalprobity, and does not treat the latter as belonging solely to divinely revealedknowledge.

Divine justice and human justice indeed have something in common, and never standin opposition one to the other. But there is nonetheless so great a difference betweenthem, in respect both of their origin and also of their reach, that one cannot say—toput it precisely—that divine justice is the source and measure of human justice. Godis by His nature just; He can neither act, nor wish to act, other than justly. It is in Hima happy impossibility, and a glorious necessity, that comes purely from His infiniteperfection. Men, by contrast, are far from being naturally just. Justice is a quality thatthey have to acquire, and this [406] obligation is imposed on them by some externalprinciple, that is to say, by the will of God Himself, and not by His justice, as we shallsee shortly. It is human justice that is recognized, rather than divine justice, as I havesaid, echoing our author, in Droit de la Nature et des Gens (Book II, chap. iii, §.5,note 5). Concerning the question of reach, the sheer excellence of God’s nature entailsthat there are certain acts of human justice which absolutely could not relate to Him, apoint that our author also makes in his polemical works at the places to which I referin my note as cited. Anonymous, who should have read and refuted all this, will beobliged according to what he recognizes at the end of this paragraph at least to findour author not guilty of the charge he laid against him, namely of advancing a“dangerous error.” The passage I have cited in relation to the previous paragraphmakes it clear that our author in no way excluded the “consideration of internalprobity” from the philosophical sciences.

XIII. So much for the end and the object of natural law. Let us now demonstrate thatthe author has failed to establish the efficient cause of this law. He looks for this, notin the very nature of things or in the maxims of right reason that conform to it andemanate from the divine understanding, but—this is surprising and would appearcontradictory—in the will of a superior. He defines duty (in Book I, chapter i, §.1) asa “human action conforming exactly to the laws that impose the obligation.” He thendefines the law (Book I, chapter ii, §.2) as “a will of a superior by [407] which heimposes on those who depend on him the obligation to act in the manner that heprescribes to them.” This being granted, no one will freely do what he must, orrather, there will be no duty when there is no superior to compel its exercise. Nor willthere be any duty for those who have no superior. And since, according to the author,



the idea of duty and the idea of acts prescribed by justice are coterminous, his naturaljurisprudence being wholly contained within his system of duties, it follows that alllaw is the prescription of a superior. These are paradoxes proposed and sustained byHobbes in particular, who seemed to destroy the possibility of any obligatory justicein the state of nature (as he terms it), that is, among those who have no superior. Yetis it not an act committed against justice when a sovereign behaves as a tyrant towardhis subjects, robbing them, abusing them, making them suffer torment and even death,for no reason other than his passions or his whim, or when for no good reason hedeclares war on another power?

What Anonymous here terms, in scholastic style, the “efficient cause” of natural lawis nothing other than the reason why one is obliged to conform to the maxims of thenatural law. Our author recognizes (and we must not fail to say this) that thesemaxims, considered in themselves, are grounded in the very nature of things, such thatGod could prescribe nothing to the contrary without contradicting Himself. [408] (SeeDroit de la Nature et des Gens, Book I, chap. ii, §§.5 and 6, and what I have citedfrom his other works in chap I, §.4, note 4.) But, he maintains, it is not considerationof the nature of things that properly and directly imposes the necessity of acting inone particular manner rather than another. It is here that Anonymous believes he iscriticizing our author most tellingly. However, if the reflections we shall offer onwhat he says above are carefully considered, I hope there will be agreement that he isperhaps nowhere more ill-founded than here.

First, let me observe that the whole paragraph is beside the point since, as Anonymoushimself recognizes (section XV), according to our author all men, no matter whattheir state, have a superior in common, namely God. Why create monsters for oneself,just in order to fight them? Why draw an odious parallel with Hobbes’s principles,which are so diametrically opposed to those of our author?

XIV. Similarly, persuaded by our author, certain scholars deny the possibility of anyvoluntary law of nations, on this ground among others, that peoples as such cannotestablish a law on the basis of reciprocal pacts, there being no superior to validatethe obligation. Too much is proved by such reasoning, since, were it valid, it wouldfollow that men cannot establish a superior by their pacts (which in fact is somethingthey can do, as even Hobbes allows).

Those who reject, correctly, the voluntary law of nations that Anonymous along withthe [409] run of scholastic jurisconsults accepts, do not base their argument on thefact that nations, having no superior in common, cannot make a valid reciprocal pact.Rather, they say, as is the case, these pacts are not laws properly speaking, since theyare made between equals, whereas every law is imposed by a superior. They maintain,moreover, (and no one has proved or will prove the contrary) that there is no generalpact among all peoples with respect to purely voluntary things over which thissupposed law of nations should have jurisdiction. The whole extent of obligation thatthere can possibly be with respect to the matters brought before it, and it is indeedtruly voluntary (for some of the articles attributed to the law of nations are found to bebased in natural law and thus are not contingent on the agreement of peoples) [seeDroit de la Nature et des Gens, Book II, chap. iii, §.23], the whole extent of



obligation, I say, that there can be with respect to truly voluntary things derives, to mymind, from the fact that custom having established these things little by little amongthe majority of peoples, without there being any general agreement between them, oneis and can be assumed to want to conform to them, as long as in any such matter, onegives no clear sign that one does not wish to follow the custom, as anyone is free todo. This remark, whose application will be seen in my notes on Grotius, serves todispel even the most specious claims of the partisans of a voluntary law of nations.

XV. It appears possible, in truth, to redress somewhat the dangerous consequences ofthis doctrine by considering God as the superior of all [410] men, and this our authordoes from time to time. On this basis, someone will say that the doctrine in questiononly appears bad, since it is self-correcting and provides its own remedy, there beingno state in which men are independent of every superior, though in an abstract systemone can hypothesize such a condition. All men are by nature under God’s empire;thus they can, through their pacts, establish a master for themselves; and, likewise, bytheir reciprocal agreement peoples can establish a law common among themselves,there being a God who gives these pacts all necessary power. The whole truth is thatGod is by nature superior to all. Yet this notion, that all law derives from the will of asuperior, remains shocking and no less fallacious, no matter what is done to moderateit. For without repeating here what Grotius judiciously observed,25namely that therewould still be a natural obligation even were one to allow—as one cannot—that thereis no God or that one momentarily denied His existence, since the concern of each forhis survival and advantage [propria conservationis commoditatisque cura, &c.]would undeniably involve a considerable concern for others (as Hobbes half notes,and as becomes clear in the example of a group of bandits who, while sworn enemiesof others, are obliged to observe among themselves [411] certain obligations;although, as I said above, a law derived from this alone would be far from perfect); toput all this aside, I insist, we need to recognize that God is praised because He is just,and thus there is justice in God, or rather a supreme justice, no matter that Herecognizes no superior, and that by propensity of His excellent nature [sponte naturaeexcellentis] He acts always as He must, such that none can with reason object. Andthe rule of His actions, like the very nature of justice, depends not on a free decisionof His will, but rather on the eternal truths which are the objects of the divine mindand which are established, so to speak, by His divine essence. As a result, thetheologians are right who have criticized our author for having maintained thecontrary, since he appears to have failed to recognize the harmful consequences of hisdoctrine. For justice will not be an essential attribute of God, if He created law andjustice by an act of His own free will [arbitrio suo]. Justice follows certain rules ofequality and proportion, rules which are founded in the immutable nature of thingsand in the ideas of the divine mind no less than are the principles of arithmetic andgeometry. Thus one can no more argue that justice or goodness depend on the divinewill than that truth depends on it likewise. This would be an astonishing paradox, onethat escaped Descartes; as if the reason why a triangle has three sides, or why twocontradictory propositions are incompatible, or, finally, why God Himself [412]exists, was that God had willed it so! A remarkable example, which shows that greatmen can make great errors. From this it would also follow that God can withoutinjustice condemn the innocent, since, given this supposition, He could by His willrender such a thing just. Those who have happened to advance such propositions



have failed to distinguish between justice and independence. By virtue of His supremepower over all things, God is independent; for this reason He can be neitherconstrained nor punished, nor can He be required to account for His conduct; but, byvirtue of His justice, He acts in such a way that every wise being can only approveHis conduct, in such a way that—the highest point of perfection— He is Himselfcontent.

Anonymous begins very weakly here, representing as the effect of a favorablejudgment an apparent softening of view, whereby he insinuates that our author, out-of-step with himself, now foresaw the danger of certain consequences. One wouldthink it was almost only by chance, and certainly not planned, that our author speaksof God as the supreme sovereign of all men [quod etiam subinde fit ab Auctore &c.].Yet isn’t this precisely a principle that provides the great foundation of his wholesystem?26 It angers me to say this but, finally, nothing is truer, and it would beuseless to hide what I am obliged to point out: Anonymous has undertaken to criticizeour author [413] without sufficiently understanding his principles, and this explainswhy he does not really grasp the question as it now stands.

Our author does not claim that all we call law or justice derives from will, still lessfrom the free will of a superior. He speaks of law and justice as these apply todependent subjects; he seeks the rule of human actions. He has said again and againthat God is supremely just;27 that He follows inviolably the rules of justice thatconform to His infinite perfections, such that He neither wills nor could will to actotherwise. Likewise, because of His independence, no one has the right to requireHim to act in such and such a manner, nor to call Him to account for His conduct.Regarding men, our author has also recognized that, though they are subjects in theempire of the Creator, it is not God’s free will that makes law and justice; and thatGod could not, without shattering His perfections and contradicting Himself,prescribe for men rules other than the rules of justice, which are founded in theirnature. But, this withal, he maintains that the proper and direct reason why men areobliged to follow the rules of justice, and which imposes on them the moral necessityto conform to those rules, is the will of God who, as their sovereign lord, hascomplete right to curb their natural liberty, as He judges fit.

In this way we dispose of the “dangerous consequences” that Anonymous, over-eagerto second the prejudices and passions of certain [414] scholastic theologians whoattacked our author during his lifetime, wants to draw from an innocent opinion,concerning which we had sufficiently rebuffed sinister interpretations. So the questionreduces to this: whether it is the will of God itself, or some other thing, thatconstitutes the near and immediate ground of that indispensable necessity wherebymen are to do that which God surely wants them to do?

Anonymous is inconsistent in his principles: he says too much, or he does not sayenough. He grounds the obligation to observe natural law in the “very nature ofthings, and in the maxims of right reason that conform to it” (section XIII), maximswhich consist in “certain rules of equality and proportion” (section XV). Indeed, heposits that “there would still be a natural obligation even were one to allow that thereis no God.” However, his view requires that “a law derived from this alone would be



far from perfect” and limited to what “the concern of each for his survival andadvantage” demands. Now these “rules of equality and proportion, these maxims ofreason conforming to the nature of things,” surely occur in all duties, no matter what?Anonymous makes and can make no exceptions. He must therefore recognize that,with the exception of those duties that directly concern God, all others will retain theirfull force, even were it granted that there was no divinity. For when all is said anddone, the nature of things remains the same, and while the writer speaks of “the ideasof the divine mind,” it is not in these ideas that we contemplate the nature of thingsand the relations deriving from them, just as it is not in a rarified metaphysics that we[415] must seek sound principles of natural law and morality. But here too,Anonymous (as he already did above, in section VI) patently confuses the honest withthe useful, something which is also evident in the example he proposes of a “group ofbandits.” For is it a principle of honesty that sees these rogues divide up the booty inequal shares? Does anyone believe that, occasion permitting, they wouldconscientiously not make off with more, or that we should grant them this scruple, asif it was a duty they had fulfilled?

There is thus no middle point: either obligation to the rules of justice among men isabsolutely independent of the divinity, and grounded solely in the very nature ofthings, like the “principles of arithmetic and geometry”; or it is no way grounded inthe nature of things. Now, of itself, the nature of things could not impose anobligation upon us, properly speaking. That there is such and such a relation ofequality or proportion, of propriety or impropriety, in the nature of things, of itselfcommits us only to recognizing that relation. Something more is required in order toconstrain our liberty of action, in order to command us to govern our conduct in acertain manner. Nor can reason, considered in itself and independently of the Creatorwho granted it to us, absolutely compel us to follow these ideas, although endorsed bythem, as founded in the nature of things. For:

1. The passions counter these abstract and speculative ideas with ideas that aresensuous and palpable. In many actions where there is some relation of impropriety,the passions reveal to us [416] a much more vital relation, a sense of pleasure thatcomes with these actions at the point where we commit to them. If the intelligence ofour mind diverts us from actions of this sort, the inclination of our heart draws us allthe more strongly on. Why then would we follow the former rather than the latter, ifthere is no external principle, no superior being that compels us? In this supposition,is not the inclination of the heart as natural as the ideas of the mind? Reason, you willsay, clearly shows us that by observing rules of propriety founded in the nature ofthings we shall be acting in a way more fitting to our interests than if we allowourselves to be led by our passions. But, without speaking of what the passions couldsay to counter this advantage, it is not a question here of utility, it is a question of dutyand obligation. I agree, as I have already indicated, that if we weigh the matter as weshould, we shall convince ourselves that, everything considered, our interest requiresthat we follow what reason dictates. Yet is not each of us free to renounce ouradvantage, as long as nothing prevents us from doing so, as long as there is no otherperson with an interest in our doing nothing contrary to their interests, and who has aright to require that those interests be met? Thus in not conforming to the ideas ofpropriety, founded on the nature of things, one would merely be acting imprudently,



and imprudence is not here opposed to a duty, properly speaking, because we are stillasking whether duty as such exists.

2. But what must be addressed above all, [417] and what is enough to destroy thethought I am fighting, is the fact that our reason, considered aside from anydependence upon the Creator from whom we receive it, is finally nothing other thanourselves. Now no one can impose on himself an unavoidable necessity to act or notto act in such or such a manner. For if necessity is truly to apply, there must beabsolutely no possibility of it being suspended at the wish of him who is subjected toit. Otherwise it reduces to nothing. If, then, he upon whom necessity is imposed is thesame as he who imposes it, he will be able to avoid it each and every time he chooses;in other words, there will be no true obligation, just as when a debtor comes into theproperty and rights of his creditor, there is no longer a debt. In a word, as Seneca longago put it, no one owes something to oneself, strictly speaking. The verb “to owe” canonly apply between two different persons: Nemo sibi debet … hoc verbum debere nonhabet nisi inter duos locum (De Benefic., Book V, chap. viii).

I conclude, then, that even the maxims of reason impose no obligation, no matter howconformable they are to the nature of things, until this same reason has revealed to usthe Author of the existence and the nature of all things. The question now is to seefrom where obligation therefore derives, whether from the will of God, or from someother thing that is in Him.

It seems to me that here there is little ground for hesitation. For from the moment thatone has [418] a just idea of God, one cannot but recognize His right to set whateverlimits He pleases to the faculties He has granted us. Nor could one prevent oneselfthinking that He surely wishes men to follow the light of their reason, as that which isbest in them, and which alone can lead them to the destiny of their nature. Moreover,in His will is found all that is required as the ground of obligation, since it is the willof the master of all men, a will always in harmony with the every perfection of thedivine nature. Why then go in search of some principle other than this, which lieswithin reach of everyone, and which follows so naturally from the relation betweenCreator and creature?

Take whatever other attribute of the Divinity you please, detach it from His will, andyou will not find a more solid foundation for obligation than in the very nature ofthings. If, to do the impossible, one could conceive in the manner of the Epicureans aGod quite unconcerned with whether or not men acted in a manner that accorded withthe nature of things and with their own nature, the vision of such a Divinity, evengranted all its infinite perfections, would at the most constitute only an example. Andthe example alone cannot impose an absolute necessity to imitate it. Or again, if youdo not suppose that God wishes men, and all intelligent creatures, to observe amongthemselves the rules of justice, what then becomes of justice? Towards whom willjustice be exercised? What use will be made of it? Will it be holy and just, if it [419]is indifferent to Him whether or not men observe the rules of justice, or if He does notabsolutely oblige them to do so?



To say that He obliges them, although they were already obliged before He willedthem, would be to say that this will is here reduced to a sort of accessory which, at themost, serves only to strengthen the obligation. It would be to diminish the reach ofHis supreme authority, to reduce it to directing things indifferent in themselves. Itwould be to attribute to the will of God, in respect of the rules of justice, no greaterforce than that of a prince, a father, a master or any other superior here below, whowishes his subordinates to be good people. Finally, is there anything more basic inHoly Scripture than to express the practice of duty, of attachment to virtue, by “doingthe will of God”? If sometimes God proposes His example to be followed, it is toshow that He asks of men nothing that he does not do Himself, insofar as His supremeperfections require or allow it [Matt. V, 48; Luke VI, 36], and that He is not a cruelmaster [Matt. XXV, 24].

XVI. What we said before has great utility for the practice of true piety. For it is notenough that we submit to God as one would obey a tyrant; nor should we simply fearHim because of His greatness, but also love Him for His goodness. These are soundmaxims of right reason, as well as precepts of Scripture. Universal jurisprudence andits sound principles lead to this same point, confirming the wisdom of sound theologyand guiding us to true [420] virtue. It is not the case that those who act well, not fromhope or fear of a superior but purely from the inclination of their own heart, fail toact justly. To the contrary, these are they who act most justly of all, since in a certainmanner they imitate divine justice. For when one does good for the love of God orone’s neighbor, one finds pleasure in the act itself (such being the nature of love); oneneeds no other stimulant, nor the command of a superior. Of such a person it is saidthat “the law is not made for the just” [I Timothy, I, 9]. To this extent it is contrary toreason to say that law alone, or constraint alone, constitutes justice. Yet it must beadmitted that those who have not advanced to this point of perfection respond to thedemands of duty only through hope or fear, since it is above all in the prospect ofdivine retribution that one finds a complete and ineluctable necessity, backed by therequisite force, for all men to observe the rules of justice and equity.28

These reflections, some of which miss the present point, in no way contradict ourauthor’s principles. Although one grounds the obligation (properly so-called) topractice the rules of justice in the will of God, who, as our sovereign lord, imposesthis unavoidable necessity upon us, it in no way follows that one must obey God only[421] as one obeys a tyrant, or from a pure motive of fear. Frankly, Anonymous is tooliberal in drawing odious consequences from those principles that have the misfortuneto displease him. Whoever has a true idea of God knows that He is good, as well asgreat, and that His will necessarily conforms with His perfections; wise and holy, Hecan will nothing that is not just and which, moreover, is not for our good. It follows,then, that even when God wishes us to do things indifferent in themselves, one mustobey Him as one obeys a good father, not as one obeys a tyrant. To conform to thiswholly good and sacred will, on which we recognize that we depend, is to actaccording to duty; this is what imposes moral necessity on all men, regardless of anyother consideration. Hope or fear are only motives to encourage us to practice duty, toovercome the resistance we may find within us, and to sustain us in the midst ofstrong temptations.



It does not advance matters to pose the question of which is acting more justly,whether it is the man who commits himself to his duty from motives of hope or fear,or the man who practices duty from the inclination of his heart. This happyinclination, to be worthy of praise, must surely have to be informed and, in thisrespect, produced by a precise idea both of duty itself and of God, in whom one canreasonably [422] distinguish the relation of Creator and master of humankind fromHis will that men observe the rules of justice, in keeping with their nature.

In order to say something substantial against our author’s principles, it would requireasking which of the two is the more just, whether it is the man who commits himselfto virtue because he believes that the holy will of God imposes this obligation on him,or the man who, without knowing or thinking that he depends on God, and that Godwishes him to follow the maxims of virtue, would observe these as simple rules ofpropriety, founded in the nature of things, or, if you will, in the “eternal truths whichare the objects of the divine mind”? It is for Anonymous to answer the question.

I shall comment à propos of what he says concerning the impulse to good conduct,that in God it is truly a great perfection not to be able to act otherwise than in keepingwith His nature; when it comes to men, however, essentially imperfect as they are andsubject to a certain law, it is good fortune rather than merit to have whether by birth oreducation the happy disposition that makes us commit ourselves easily to duty.29 Inthis way, it is the man who, encountering great obstacles, whether in his temperamentor in the bad habits he has been allowed to acquire since childhood, works toovercome them and in the end succeeds, is without contradiction more just andpraiseworthy than another, for whom being a man of virtue has cost almost nothing.

What I have just said wholly cancels the advantage that Anonymous claims for hisown doctrine, at the expense of our author’s, in respect of the “practice of true piety.”We, on the contrary, in arguing against him, can claim a very real advantage that liesmanifestly with us. It is that we equally avoid the two vicious extremes to which menhave been drawn on this question: one is the false thinking of the philosophers andtheologians, who have maintained that justice depends on an entirely free divine willwhereby God could, were He so to wish, render the unjust just; the other is theopinion of those who, conceiving justice to be independent of the will of God, andfounding it purely in the nature of things, have also depicted virtue as independent ofreligion, and atheism as a doctrine that retains morality and natural law in all theirforce. Monsieur Bayle, as we know, in pleading for atheists, has made great efforts toshow that “they can believe themselves obliged to conform to the ideas of reason as arule of the moral good, as distinct from the useful” (Continuation des Pensées sur laComète, art. clii).

XVII. From what we have said, it will be clear how important it is for the young, andeven for the state, to establish better principles of legal science than those proposedby the author. He is also wrong when he says (Book I, chapter ii, §.4) that “if a manrecognizes no superior, no one has the right to impose on him the necessity to act in acertain [424] manner.” As if the very nature of things and the concern for our ownhappiness and security did not require certain things of us! Reason too prescribesmany things, in respect of which we have obligations, if we are to act in accordance



with the highest principle of our nature and avoid evil,30or if we are not to depriveourselves of some good. All these maxims of reason pertain to justice, given that theyinvolve our relations with others, and others’ interest in our observing thesemaxims.31I am aware that certain authors take the word “duty” [officium] in abroader sense to refer to any act of virtue, without excluding those acts which do notinvolve another person or in which the interests of others do not figure; and in thissense one may say that strength and temperance have a place in our duty, and thatour duty extends, for example, to caring for our own health, since one is right toblame those who neglect it. Yet I do not reject our author’s way of using the word“duty,” restricting it to what the law requires [ad eaquae a jure desiderantur].

Having thwarted the attempt to draw false consequences from my author’s principles,and having shown that these are, instead, the soundest of principles, I may—so itseems to me—regard the conclusion of Anonymous as null and void. On the contrary,I declare that, without detriment either to the state or to youth, [425] this abridgment,Les Devoirs de l’Homme et du Citoien, may be placed in hands of all who wish tostudy natural law. If it is not free from all shortcomings, it nonetheless poses nodangers. Its principles are in general excellent, and it would be easy for me to showthat one may correct that which is not wholly exact by changing a handful of lineshere and there. Let us be fairer, and more reserved, when it comes to criticizing theworks of others because of a few faults that we detect in them. Whoever undertakes towrite for the public has an interest in this.

But I am weary with having to repeat that Anonymous still confuses propriety withobligation, and interest with duty. Let us see if the comment on the different usage ofthe Latin word officium has led to some great discovery, as we are promised in thefollowing paragraph.

XVIII. But in justification of this usage, I have a reason that is unknown to our author,namely that in the whole society of men under the government of God [in generalisocietate sub rectore Deo &c.], every virtue, as we have already said more than once,is contained within the duties of universal justice. Thus it is not only external actions,but also all our sentiments [sed etiam omnes adfectus nostri &c.], that are directed bythe infallible rule of the law. A sound philosophy of law considers not only peacebetween men, but also friendship with God, possession of which promises us [426]enduring happiness. We are not born for ourselves alone; for others have some claimon us, while God’s claim on us is total. [Sed partem nostri alii sibi vindicant, Deustotum.]

What Anonymous proffers here as a thought original to himself, and consequentlyunknown to our author, is nothing but an idea of the ancient Stoic philosophers.32And our author was so far from not knowing this idea, that he speaks of it explicitly asan idea that he does not reject, but rather treats as popular: “If it was fitting,” he says,“to employ popular ideas, one could say that this world is like a great state, of whichGod is the sovereign.”33 So it is with the doctrine of Anonymous, as with those ofmany other moderns who, seeking to say something new, have done little more thanchange the language, with the result that they end up coming back essentially to ourauthor’s doctrine. Indeed, this “universal justice” in “the whole society of men,”



under the empire of God, what is it other than the laws that God prescribes to men astheir master? Consequently, natural law draws all its force from the authority and thewill of this supreme legislator. As for the regulation of our internal “sentiments” andthe need to gain for oneself the “friendship with God,” it suffices to refer back to whatwas said above, on sections VI–XI and XVI.

XIX. Perceptive though he was, the author [427] fell into a contradiction for which Ido not see how he could easily be excused. For he bases all legal obligation on thewill of a superior, as appears from the passages I have cited. Yet, shortly afterwards,he then says that a superior must have not only power sufficient to oblige us to obeyhim, but also just cause for claiming a certain power over us (Book I, chapter ii, part5). Therefore the justice of the cause precedes the establishment of the superior. If todiscover the source of the law a superior must be identified, and if, on the other hand,the authority of the superior must be founded in causes drawn from the law, then wehave fallen into the most blatant circularity ever. For from where will one learn if thereasons are just, if there is as yet no superior from whom, it is supposed, the law canemanate? We could well be surprised that an acute mind could so manifestlycontradict itself, if we did not know that it comes easily to those who love paradoxesto forget their own opinion when ordinary sense prevails. It is appropriate to recordthe author’s exact words, so that no one will think we are imputing something to him:“He who imposes obligation, and who imprints this sentiment into a man’s heart, isproperly a superior, that is to say, a being who not only has sufficient power to inflictsome ill on those who contravene, but who also has good reasons [428] for claimingto constrain, as he sees fit, the liberty of those who depend on him. When these twothings are brought together in the person of someone, he no sooner makes his willknown than in the mind of a reasonable creature there arises a feeling of fear,accompanied by a sense of respect… . Whoever cites no reason other than the powerhe holds in compelling me to do his will, may well get me in this way to prefer to obeyhim for a time, rather than expose myself to a greater harm that my resistance wouldincur. But when that fear is removed, nothing will prevent me from following my ownwishes, rather than his. Conversely, if he has good reasons for requiring mycompliance, but lacks the power necessary to make me suffer some ill should I refuseto obey him with good grace, I can then disregard his authority with impunity, unlesssome other, more powerful than him, is willing to support his authority and takerevenge on my disregard.” Now the reasons for which one may rightly require me tosubmit my will to theirs are “that he has afforded me some considerable benefit, thathe is manifestly well-disposed toward me and better able to serve my interests than Ican myself, and that he presently wishes to take responsibility for my conduct; andfinally, that I have willingly submitted to his direction.” These are the author’s words.But if we examine this well, we easily see both that he is not consistent with himself,and that he fails to resolve the difficulty. If force without reasons does not suffice, norreasons without force, why is that—I ask you—when force ceases, and [429] reasonsalone remain, I do not regain the liberty and the rights I was said to have before,when there were reasons but as yet no force? For according to the author, “when thatfear is removed, nothing will prevent me from following my own wishes, rather thanhis.” This would apply even if reasons existed. Or if reasons alone had sufficientpower to compel obedience, why did they not have it before fear was provoked? Whatvirtue does fear add to reasons, other than the effect of fear itself, if in the absence of



reasons, fear cannot claim to impose obedience of its own accord?34Or can such apassion, though short lived, impress a permanent trace on our unwilling spirit?Suppose that a man, owing obedience to another solely by virtue of reasons that thisother has to require obedience from him, ends by being constrained by the power thatthe other possesses, yet he remains committed to the resolution to obey the other onlyinsofar as he is constrained to do so. I do not see why, because he was once soconstrained, he should remain perpetually in submission to the other. Suppose a sickChristian is taken prisoner by a Turkish doctor whose remedies the invalid had longknown to be effective. With the remedies now imposed coercively, would the prisoner,if he has [430] a chance to escape, be obliged to follow the regime more faithfullythan before he was made prisoner? We have to say one of two things: either reasonsestablish obligation prior to force, or they no longer impose obligation once force isremoved.

The vicious circle imputed to our author disappears, I have no doubt, in the sight ofthose who have read what I said above regarding section XV. Every superior, belowGod, bears an authority founded on reasons, the justice of which derives from somelaw of nature, being related to the rules of that justice whose obligation truly emanatesfrom the will of a superior, or from the will of the king of kings and the lord of lords.But this supreme being’s right of command is founded in reasons whose justice isimmanent, such that they do not need to draw their force from elsewhere. Beforeknowing God, or when taking no account of His existence, we perceive nothing sogreat as to merit the homage of our submission of our will, nothing so just as to be arule that we believe we cannot dispense with. Our liberty of action, that noble facultyat the root of our nature, cannot find in the nature of things anything with sufficientforce to constrain that liberty: the relations of propriety, order, beauty, honesty,relations to which justice reduces, remain so many speculative notions until weunderstand that He who is the author of the nature of things and of the reason thatreveals them to us, approvingly, wants [431] us to conform our external and internalacts to these relations. At this point duty begins: the will of the supremely perfectbeing is the rule of our will, and, beyond doubt, He who made us in all that we are canrequire that we do not do all that we might wish to do. Once we have recognized inHis will the ground of obligation, we then find in His goodness and His Strength thegreatest practical motives to encourage us and to enable us to fulfill our duty. I leaveit to the reader to judge whether this doctrine contains anything that is not dependableand consistent.

As to what our author says concerning force linked to reasons, note should have beentaken of the words “with impunity” that appear in the passages cited, because this isthe key to his thinking. If the superior, he writes, “has good reasons for requiring mycompliance, but lacks the force necessary to make me suffer some ill should I refuseto obey him with good grace, I can then with impunity disregard his authority, unless,etc.” He does not say: “I can then with reason disregard his authority.” He does notclaim that duty ceases at this point, and that “just reasons” here lose their force; hespeaks of the impression that these reasons could then have on the disposition thatcharacterizes most men. This is enough to discredit all the arguments that Anonymousadvances on this matter.



I nonetheless admit that our author’s thinking is not sufficiently clear at this point,since he should have drawn a sharper distinction between that which correctly givesthe superior the right to command and, on the other hand, that which enables him tocommand effectively. I indicated this in a short note, [432] the first note on theparagraph in question. I am not one to be dazzled by authority, or to find justificationsfor someone at any price; as will be clear from the longer note that follows in thesame place, I picked out other shortcomings that Anonymous either did not notice orfor which he excused our author. But all these little faults do not mean he has notshown the right way or that his doctrine, overall, is not well founded. Though I may, itseems, have developed some points a little better than did our author and rectifiedsome details, I am concerned not to claim the glory that is due to him, and not toattribute to him my own thoughts, for which I remain in his debt.

I will offer just one further remark, with respect to the example that Anonymousproposes of the Christian invalid who falls under the power of a Turkish doctor. Justas it is not as an invalid that this prisoner is a prisoner, so it is not as a doctor that thedoctor has command over the other’s body. The relations are different. Thus I do notsee what is the point of comparing the remedies of this doctor, as doctor (or, rather,the content of these remedies, for one can scarcely suppose, as we would have to, thathe composed these remedies before the invalid was taken prisoner, but only that theinvalid knew beforehand the utility of the things prescribed), what is the point—Iask—of comparing these remedies as to whether they were made before or after theinvalid’s captivity? Both before and after, in prescribing [433] things beneficial forthe sick man’s health, the doctor always acts as a doctor, not as a master. Or if hewishes to use force to oblige the invalid to take the remedy, he no longer acts asdoctor. But whether the doctor orders the remedy as doctor or as master, theobligation to follow the remedy comes from elsewhere, or from that natural lawwhereby each works to conserve the life that God has granted, and consequentlyadopts to this end all legitimate means, no matter who brought them to his knowledge.What Anonymous has to say about the “chance to escape,” like the example as awhole, is irrelevant. So let us come to the conclusion.

XX. Enough has been said to show that the author lacks secure principles on which tofound the true reasons of law, because he preferred to contrive, as he saw fit,principles that are unsustainable [quoniam principia pro arbitrio ipse effinxit, quaesibi sufficere non possunt]. For the rest, I have treated elsewhere both the foundationscommon to every sort of law, without neglecting the law which derives from equity[etiam quod ex aequo & bono tantum descendit], and the proper foundations of strictlaw, which is also the law that establishes a superior. To summarize in brief all that Ihave said, this is what must be generally thought: the end of natural law is the goodof those who observe it; the object of this law is everything that others would wish usto do and which is within our power; and the efficient cause is the light of eternalreason that God has kindled in our spirit.35In my opinion, these [434] principles, soclear and simple, seemed too obvious to certain subtle minds who, because of this,have turned the principles into paradoxes, the novelty of which flattered them,36andprevented them from seeing either the imperfection of the paradoxes or thefruitfulness of the principles. And so, Monsieur, this is what I believed I should writeto you, to prove that the work of Mr Pufendorf, though not to be despised, nonetheless



requires many corrections as to its principles. For the present, I do not have time togo into particulars.

The reader will draw for me the opposite conclusion, one that follows from what Ihave said. Suffice it for me to add a word on the principles that Anonymous wishes tosubstitute for those of our author.

For my part, I admit that I find only great vagueness here. What Anonymous proffersas the “efficient cause” of natural law and with which we should begin is the generalprinciple of all the natural sciences. For is there any of the true natural sciences thatdoes not emanate from this “light of eternal reason that God has kindled in ourspirit”? The object (or, to speak more precisely, the matter of natural law, for theobject is more correctly those who must observe this law), the object as Anonymousestablishes it, given his preference for remaining at the level of generality, is reducedto the principle of sociability; for I cannot think that Anonymous, in the wordsquidquid aliorum interest, seeks [435] to include God himself, and thus to imply, orgive us reason to believe, that it is the concern of God that we should pay Him ourhomage, or that He who is sufficient to Himself has need of His creatures and can findsome utility in what they do. Finally, the end of natural law—which Anonymouswould have lie in “the good of those who observe it”—offers us nothing that is notcommon to the practical sciences, all of which propose a certain good, a certainadvantage. It remains to be seen which good is particular to natural law. Are thesereally the “rich and illuminating definitions” for which we have been waiting?

At Lausanne, this 1st of October, 1716.




Discourse On What Is Permitted By The LawsIn Which It Is Shown That What Is Permitted By The Laws IsNot Always Just And Moral

Magnificent and most honored Lord Bailiff, most honored Lords of the Council ofthis City, learned and respected members of the Academy, my most honoredcolleagues, listeners of no matter what rank, sex and age.

The subject I have chosen will be for many a great paradox, both in itself and comingfrom me. It is usual to set the probity and the duties of a good citizen squarely withinthe frame of what the [438] laws of the land require.1 It is an equally commonassumption to imagine that knowledge and observation of the laws must constitute theentire scope, indeed the non plus ultra, of the studies of a jurisconsult, a man of law,an advocate and, in general, all who are involved in work that has some relation to thelaws. But the great masters of the art, the wise inventors of the most famous and themost widely received laws, in other words the jurisconsults of Ancient Rome, were ofa different mind. They professed a substantial philosophy that embraced the wholeextent of justice and equity; they proposed to turn men into good persons, not onlythrough fear of punishment but also through love of virtue, which carries its ownreward;2 they drew a careful distinction between the rules of law, that determine thefindings of the judge (see Monsieur Noodt, Julius Paulus, chap. x), and the preceptsof right, that determine the conduct of a good man. As their maxim, they proposed:“Not everything that the laws permit is just and moral.”3

It is this same maxim that I want to set down and develop. If, on an occasion such asthis, one can discuss matters more appealing to those whose only wish is foramusement, there is [439] scarcely any matter that could be more useful for everyone.After all, why should discourses of this sort not be designed in such a way that eachperson can take from them something amusing and something that can be put toprofitable use? So let us try to convince those who either do not know, or who do notpay adequate heed to the fact, that, setting aside even the imperatives of Christianity,for something to be judged innocent, it is not enough that it is permitted or authorizedby the laws. There are two different ideas here, each of which opens up a vast field forour considerations: the idea of a tacit permission, and the idea of an explicitentitlement. Sometimes the laws pass in silence over certain bad actions that theyconsequently permit; and sometimes the laws positively authorize performance ofsuch actions. Today, we shall limit ourselves to the first of these two headings.

The question reduces to knowing whether the civil laws are the sole rule of citizens’conduct. For if they are not, if there is another rule, prior and higher, it is clear thatsomething is in no way rendered innocent by the mere fact that the laws of the land donot forbid it, either directly or indirectly, either expressly or by implication.

Now, as to there being another rule, prior to and thus the very measure of all civillaws, [440] this is what the wisest and most enlightened persons among the civilized



peoples have always agreed.4 There have always been ideas—more or less distinct,more or less far-reaching, more or less accurate—of a law founded in men’s verynature, taught by reason, and fitting the true interests both of human society in generaland of each state in particular, a perpetual and irrevocable law that is the same inRome, in Athens, in every country and in every century, a law from which no one canhave dispensation, a law that no authority has the right to abolish or amend, in wholeor in part.5

Therefore all legislators have claimed to establish nothing that is contrary to this law.6Never has a sovereign, no matter how unreasonable, dared to attribute openly tohimself the power to make laws purely according to his whim, with no regard to thenatural principles of just and unjust, at least to the extent that these were known topeoples. Where they wished to establish laws themselves, peoples have often soughtand followed the counsel of philosophers, these being men they believed most versed[441] in the study of the maxims of reason that are to be taken as the ground of everycivil law. [See Mr Perizonius, on Elien., Var. Hist., Book II, chap. 42, note 6.] Andlegislators, to enhance reception of laws they proposed or wished to establish, havesometimes pretended that they brought the laws down from heaven, a device theyimagined all the more effective because they knew that, in some respects, God isregarded as the power of the rules of justice. [See what one has said on Pufendorf’sDroit de la Nature et des Gens, Book II, chap. iv, §.3, note 4.]

Given all that, it was indeed difficult to avoid some unjust laws slipping in among themany that were just. From the records of Antiquity, it seems that the first laws hadtheir origin largely in custom, which all too often is a very poor master.7 What entersthe laws in this way usually does so with little analysis or reflection. Ignorance,prejudice, passions, instances, authority, caprice have all clearly played a bigger partthan reason. Custom is the opinion and the decision of a blind multitude, rather thanof the wise.

When later it came to the making of explicit laws, published in standard written formsand thus rendered fixed and unalterable, the established usages [442] that had for solong had the force of law could not but be retained for the most part,8 only taking on anew form that gave them weight and durability.9 As for the other laws of whichnotice was taken, whether their establishment derived from the will of the people, thewill of the state aristocracy, or the will of a single man, no matter what theprecautions, the ideas of justice and equity were not always or adequately known forpeople to have been able to keep to them everywhere and in everything, nor werepeople sufficiently committed to these ideas to consult them and to follow themexactly. The philosophers themselves were not always such good advisers in thismatter, as the following example shows. [See Elien., Var. Hist., Book II, chap. 42, andDiogen. Laert., Book III, §.23.] The Arcadians begged Plato to come and teach themthe laws that he judged necessary for a new city they wished to establish, at thepersuasion of their allies, the Thebans. Flushed with this honor they did him, thefamous Athenian prepared to set out. However, he quickly changed his mind when,through an interview with the Arcadian representatives, he realized that this peoplewas in no mood to allow introduction of the community of wealth and women that thephilosopher regarded as a rare secret of government, one that he established in his



imaginary republic, in the absence of a real state that was willing to introduce it. If thegreat Aristotle had been called to a place on a similar commission, he would not havebeen concerned with proposing such community, [443] having rejected the idea in hiswritings. But he would nonetheless have advised something just as bad: I mean thatno child born with some bodily defect would be raised or that pregnancies to womenhaving already given birth to a certain number of children would be aborted. This isone of Aristotle’s political maxims. [See Politics, Book VII, chap. xvi.]

Yet no matter how the laws were introduced and no matter what the intellectualcapacities of those who played the major part in their establishment, it is a certaintythat in various times and various places there were laws that were unjust. Among theEgyptians, a people once so celebrated for their wisdom, it fell to daughters alone tosupport their father and mother, if need arose, sons being spared this duty. [SeeHerodotus, Book II, chap. xxxv.] A law of the Persians imposed the identical fate, forcertain capital crimes, on those who had committed the crime and on those who hadno part in it: the innocent children and all the relations of a guilty father [seeHerodotus, Book III, chaps. 118, 119. Amm. Marsellini, Book XXIII, chap. vi, p. 416,Ed. Vales. Gron.]. This was the practice too, not only among the Carthaginians [seeJustinian, Book XXI, chap. iv, no. 8] and the Macedonians [see Q. Curt., Book VI,chap. xi, no. 20, and Book VIII, ch. vi, no. 28], but remains so still today, amongsome peoples of Asia [for example in Japan: see Varen, Descript. Jap., chap. xviii;Ferdin. Pinto, chap. 55]. In Taprobane, the island in the great Indian ocean, there wasa law against living beyond a certain age, at which point it was necessary—with alight heart—to lie upon a poisonous herb which brought a gentle death [Diod. Sic,Book II, chap. 57. Today this is the island of Ceylon]. At Sardinapolis, in Lydia, whena father became aged, his children themselves had to slaughter him [Elien., Book IV,chap. I]. The pitiless severity of an [444] Athenian legislator, who had decreed thedeath penalty for the least offence as for the most enormous crimes, caused it to besaid, with good reason, that his laws were written in blood [Dracon. See Aristotle,Politics, Book II, chap. xii; Plutarch, Solon, p. 87; Aulus Gellius, Book XI, chap.xviii]. Established among the same people, ostracism threatened with exile the mosthonest persons of that state, for no reason other than their merit. The Spartanspermitted theft as an exercise of skill [Aulus Gellius, as above; Xenophon, De Rep.Laced., chap. ii, §.7 et seq. Ed. Oxon.; De exped. Cyri. Book IV, ch. vi, §.11, &c.],and adultery in order to produce healthy children [Xenophon, De Rep. Laced., chap. I,§.7; Plutarch, in Lycurg., p. 49, Vol. I, Ed. Wech]. Roman law, beyond the obviousinclusion of persons liable for punishment for various sorts of crimes [see Pufendorf,Droit de la Nature et des Gens, Book VIII, chap. iii, §.25], condemns to the maximumpenalty every slave who happened to be under the same roof as their master at thetime when the latter was assassinated, even though there exists no proof that theywere accomplices to the murder [see Tacitus, Annal., Book XIV, chap. 42; Digest,Book XXIX, title 5, De Senatus-consulte Silanien. &c.]. If, wherever it was able toreach, Christianity finally saw such laws abolished, this did not prevent other laws, noless bad, from being introduced in respect of other things. Look at the Theodosian andJustinian Codes and there you will find numerous laws, thoroughly inhumane andutterly unjust, against people whose only crime consisted in not sharing the opinion ofthe more powerful party in respect of speculative matters. Did paganism produceanything more tyrannical and more abominable than those tribunals of the Inquisition



which, to the shame of religion and of humanity itself, handed over to the secularauthorities innocent people condemned by rogues, whilst granting full indulgence[445] for every sort of crime before the judges of this order, with the authority of thelaws of various countries? In light of this, it comes as no surprise that in a Christianstate [Poland], where this religion is dominant, the political law-makers judged itappropriate to permit cut-price homicide: in Poland a gentleman who has killed apeasant pays just ten écus.

That, I think, is more than enough of what is needed to indicate the extent to whichcivil laws are liable directly to contradict the clearest laws of nature. And to indicate,in consequence, how very insecure it is to consider civil laws as infallible interpretersof the laws of nature, or as embodying all that is required to provide a model ofconduct. In truth, one must not lightly tax with injustice the laws established in thecountry where one lives; indeed, it is the case that, where doubt arises, thepresumption must be in their favor.10 But meanwhile one must be alert, one mustalways be open as far as is possible to the ideas of justice and equity, ideas of whichwe each carry the seeds within us. For in the end, the instant that the most genuinelaws of the most legitimate sovereign conflict in any way whatsoever with theseimmutable laws written in our heart, there is no question of seeking a balance,because it is absolutely necessary, cost what it may, to disobey the former in order notto do damage to the latter. Men’s submission [446] to civil government does notextend, and never could extend even when they wished it, to the point where a humanlegislator is set higher than God, the author of nature, the creator and supremelegislator of men. As for things indifferent, it is entirely reasonable if, beyond themountain or the river, something is considered just, while as a result of the contrarywills of the legislators of two different states, on this side it is considered unjust. Butwhen it is a question of that which is clearly commanded or forbidden by theuniversal law of humankind, all the laws in the world can no more render just what isunjust than they can render healthy what is toxic for our bodies.11 Thus in relation tosuch things, the conduct of the good man is everywhere the same. He never believeshimself bound to obey manifestly unjust laws, and even less does he believe himselfauthorized to exploit the most explicit permission in the world when it conflicts withmoral good.

It is even clearer that the silence of the laws is not, of itself, a warrant for theinnocence of actions concerning which the laws say nothing, actions that are notembraced within their valid scope. The examples here are infinite in number:travelers’ reports, ancient and modern, are little more than a tissue of things, asvicious as they are excessive, that can be observed openly practiced [447] and adoptedas custom among one people or another. Let us do no more than cite two or threeinstances capable of shaking the best secured mind from a false and erroneous idea ofits duties. Were not the greatest impurities, the most infamous sins against nature,formerly so much to the liking of the Greeks and Romans that even the wise men gavein to them without any shame? [See Grotius on Romans I, 27.] Did not Romanwomen quite publicly abort their pregnancies, until a rescript of Severius andAntonius forbade them so to do, under pain of banishment for a given time [Digest,Book XLVII, title xi: de extraord. crim. Leg. IV; see Mr Noodt’s Julius Paulus, chap.xi]? Throughout the Roman Empire, as well as among the majority of the Greeks, that



is, among the most enlightened and civil of peoples, could not a father and motherexpose or kill their own children with impunity—I am horrified at the thought—ifthey did not wish to raise them?12 And was not this barbaric custom preserved—whowould believe it?—under Constantine the Great and some of his successors? [Seegenerally on this, Mr Noodt’s Julius Paulus, where the whole matter is fullyconsidered.] Among the Christians of past centuries, was not the rage for duels soextreme that the laws required to suppress it are counted as the most hard-won andcelebrated achievement of certain states?

[448] Notwithstanding this, let us not condemn the civil laws more than they deserve.It is not always the fault of these laws if they do not forbid unjust or dishonest things.Doubtless they must rectify vice up to a certain point; but beyond that, it is absolutelyoutside their jurisdiction. Since they are, as it were, secondary laws, their sphere too iscorrespondingly restricted.13 Once proven, this principle will serve not only toundermine in their entirety the foundations of the illusion which we are challenging,but also, if we pursue the consequences, to dissipate false ideas on other importantpoints.

Let us therefore briefly consider the nature and the end of the civil laws. What does ahuman legislator as such propose? What must he propose? Is it to bring men topractice the full range of all their duties? Surely not. There are some duties of a kindthat their very nature requires that they be left entirely free, like those of beneficence,which is no longer beneficence, from the moment when for some purposes coercion isinvolved. Should the human legislator act solely to prevent a man committing someirregular and morally bad action? In vain would a mortal man set his mind on this. Itis simply beyond human nature. As long as there are men there will be vices; andthese vices will always create internal agitations, some external effects of which [449]may well be stifled by the fear of some great ill, but not all of them could be, not evenmost of them. I will go further and maintain that the end of the civil laws, inthemselves, is not to render truly virtuous those on whom the laws are imposed. [Seethe Discourse of Mr Noodt on Liberté de Conscience, p. 159 and following p. 194, p.215 of the third edition, Vol. 1 of his Recueil de Discours, published in 1731.] Forthat, the laws would have to be able to regulate men’s interior; but since they cannotreach this, they have no business in meddling with what happens there; this is thepreserve of the infinite scrutineer of hearts. As for the external signs, it would be verydifficult, not to say impossible, to isolate what is bad in an infinity of equivocalactions, where vice often masks itself with the appearances of virtue. Nor are themeans available to the laws such that, through a principle of virtue, they can achievecompliance with what they require as most just and moral. The laws do not take thepath of the heart; they do not work to persuade, nor do they reason; rather, theycommand, they forbid, they intimidate, they threaten: he who does such and such athing will be punished in such and such a manner. This is their language, this is theirsole and common rationale: it all comes down to fear of the coercive power withwhich ministers and those who execute the laws are armed.

Now, note this well, whatever partakes of force is of itself incapable of winning overthe mind and, it follows, of softening the heart. Force does not enlighten, it shocks. It[450] may assist in holding a man to his duty, but force does not incline him to



practice his duty willingly, and as a duty. When one is constrained only by fear, one isall the more ready for a bold evasion the instant that fear ceases or a way is glimpsedof avoiding the effect of the threats. Coercion even serves to inflame desire the more.And this is why those who seek to persuade have to take care to do nothing that mightencourage the suspicion that their aim is to coerce. Men like to act freely forthemselves; and they enjoy a sense of doing so when they heed only those reasonsthey find convincing. The great secret of persuasion consists in appearing to beoneself persuaded without meanwhile displaying any great wish to persuade others.This zeal to possess others’ spirits passes for an attempt on their freedom; the overlyzealous doctor is considered one who seeks to take control or who is unsure that hisown reasoning is sound. In a word, to the extent one has recourse or appears to haverecourse to coercion, so to that same extent impressions that reach the heart will berejected. The slightest air of authority renders almost useless whatever an orator,sacred or profane, might say. If force sometimes contributes to forming good people,it is only insofar as it disposes them to turn away from certain largely involuntaryaberrations, and to return to one’s self, to reflect, examine, and discipline oneself, inthis way allowing that which alone is capable of forming virtuous sentiments to act.But this happens very rarely, and only when one is already favorably disposed tovirtue. For in those whose heart and mind are astray, in them fear produces onlyforced actions that are nothing but external.

[451] Such is the ordinary effect of the civil laws, which speak only by threatening.Mosaic law itself, for all its divinity, no matter what the beautiful precepts that comewith it, obtained from the Jews a purely servile obedience that remained unreliable,corresponding only to the impact of fear [see Romans VIII, 15]. Thus no matter howvirtuous a legislator is or should be, the proper and natural end of his laws is not toraise men to virtue. So then what is it? Here is the answer. For the civil laws, the endis to prevent citizens from doing each other some considerable harm, whether in theirpersons or in their property; and with this aim, to curb the external actions of vicewhich tend towards such wrong, to the extent that society’s peace demands andpermits. Now, to achieve this, repression of the grossest excesses and the mostpalpable injustices is sufficient. Indeed, sometimes prudence requires that these aresuffered in order to avoid more onerous risks. Those whose ill-doing harms onlythemselves are sufficiently punished by their own actions; no one has an interest inhaving them punished further by the public authorities. As to injustices, if these causevictims minor harm, or if they are so subtle and hidden that it is difficult to determinetheir authors, or if they are so common that most people could accuse each other ofcommitting these harms, the law suits they entailed would be beyond count, andwould occasion an interminable debate that exhausted the most constant patience.What is more, the impact of the inquiries would generate greater disturbances thanwould connivance or toleration. There are even times and places in which one wouldbe openly jeopardizing the authority of the laws and the magistrates if [452] anuntimely attack was made on some enormous iniquity that was backed by all theforces of custom. In general, it is in light of the circumstances that a legislator takessteps to proscribe more or fewer bad actions, and to punish them with more or lessseverity.



However, no matter what limits the legislator sets to vice when he proscribes viciousthings, it is not specifically as immoral that he proscribes and punishes them, but asharmful to the public or to individuals. And, conversely, when he prescribes thingsthat may be linked to some virtue, it is not specifically as so many acts of virtue, butas so many necessary means to achieving the ends of civil government; it is not aspraiseworthy things, but as useful things. Therefore he does not concern himself withthe principle or motivation by which one obeys his laws. Whether one believes themto be just or unjust; whether one observes them consciously or unconsciously;whether one regards them as a duty or as an impediment, provided that one doesexternally what the law demands, the legislator has what he wants: the effect that hislaws can produce has been produced, and society is no less calm than if obedience hadderived from a sense of virtue. It is only indirectly, and as it were in another persona,that the legislator can and must work toward the true interests of virtue, by furnishingthe citizens with solid instruction and such other means as are appropriate toachieving that which he could not himself achieve, even with all the force at hisdisposal.14 For the rest, the office of legislator and [453] the office of moralist arealways quite distinct; the latter complements the former, and the legislator leaves avast field of action to the moralist. The legislator, as legislator, permits many thingswhich he condemns in others and which he severely forbids to himself as a man and,more strongly still, as a Christian. Legal permission does not always presuppose thatthe legislator finds what he permits to be just and moral: often it is a mere permissionof impunity and not a permission of approval. Or rather, legal permission must alwaysbe viewed on this basis, no matter what the legislator’s ideas about the nature of thethings that are not forbidden.

It has even been necessary, in order to prevent abuse of the legislative power, for theauthority of legislators not to be extended to the point of forbidding, under pain ofsanction, all that they might judge to be contrary to some moral virtue. For, not allbeing sufficiently enlightened, under such a pretext they could easily punish entirelyinnocent things. There are only too many examples of this. Suspicious-minded princeshave sometimes made something a crime on the basis of a dream that had upset them.[See Tacitus, Annales, XI, 4; Amm. Marcellin, XV, 3.] There was a time when peopleof distracted mind were burned, like sorcerers, and for this purpose one saw nothingbut pyres burning everywhere. In certain places marionettists came close to beingmistaken for magicians, and were punished accordingly. On the basis of the falseideas that uninformed ecclesiastics had given him on the subject of interest on moneyloans, a Christian emperor (Basil the Macedonian), not content with reducing interestto an equitable rate, forbade it altogether as an [454] illegal contract, both in its natureand in the light of the rules of the Gospel. Thanks to this vain scruple and this ill-informed piety, he ruined commerce and reduced a multitude of people towretchedness, with the result that his son and successor, Leon known as thePhilosopher—and more of a philosopher in this respect than his father—was forced toconstantly raise the defenses and to permit interest, as previously, on a modest scale[see Leon’s Novelle, LXXXIII]. But do we not still see today, in various places,supremely unjust and inhumane laws which, under the fine pretext of advancing theglory of God and repressing vice, directly persecute virtue? Though they are doing nomore than fulfil the essential obligation, as is only natural for each individual, tofollow the light of one’s conscience, people are being punished, and punished cruelly,



because others wish to believe them guilty either of wilful and rectifiable errors, or ofa malicious and unbending stubbornness.

This last example would suffice to demonstrate the importance of establishing that thelaws must not punish something simply because it is morally bad and, following fromthis, that impunity does not here win out over innocence. Such impunity, therefore,does not prevent certain things of a vicious nature from sometimes being known to bevicious, in the very countries where they are nonetheless permitted. Civil laws leaveto the forces of ill-reputation the task of punishing that which deserves punishment, if[455] in the general opinion of citizens the thing is considered morally bad,15 whilethe judgment of the wise at least conserves its rights. Under the Roman laws, a merefalse oath, which causes harm only to the person who swore it, remains unpunished[see Cujas, Obl., II, 19];16 nevertheless, there has at all times been outrage atwhosoever rendered himself guilty, no matter in what way, of a crime such as this thatdirectly impugned the divinity.17 Ingratitude, a vice as shameful as it is common, waspunished only among a few ancient peoples [see on Pufendorf, Droit de la Nature etdes Gens, Book III, chap. iii, §.17, note 3]: but, as Seneca tells us, it is condemned byall.18 The trades of courtesan, gaming-house keeper and others such are nothing lessthan honest in the actual places where they are publicly exercised. It was allowed tothe ancient philosophers to utter lofty censures on the mores of the times, even when,without great risk, they could not have raised their voice against the idolatry andsuperstitions of the vulgar.

The civil laws and the laws of virtue thus form as it were two distinct jurisdictions,which may well converge up to a certain point, but beyond this point virtue aloneremains, and commands absolutely. Or rather virtue is always the supreme mistress.No human ordinance can in any way exempt anyone whomsoever from the naturalempire that virtue holds over men: whatever virtue calls for is always indispensable,[456] whether or not the civil laws lend it their authority; whatever virtue forbids isalways illicit, whether or not it is permitted by the civil laws, the wisest and mostperfect of which necessarily leave to each person’s freedom and conscience no smallnumber of vicious and immoral things. Of this I offer another and final proof, but aproof that is irrefutable. When He gave laws, God Himself as temporal legislatorallowed such things. The law of Moses certainly punished false oaths [see LeviticusV, 1 and VI, 3], but not vain and foolhardy oaths [see Matthew V, 33 et seq.]. Amongthe Jews there was no action in respect of insults [Ibid., verse 22]: that nation’s roughand gross temperament made abstinence from crude speech and from outbursts ofuncontrolled anger too difficult. Likewise it was to accommodate the untamedsavagery of a husband, that the law permitted him to divorce his wives as often andwhenever he wanted, for no other reason than his aversion and his own good pleasure[Deuteronomy XXIV, 1; Matthew XIX, 8]. There were places designed to receive andshelter those men whose misfortune it was to have killed someone accidentally andwithout intent; but if the involuntary homicide, having been declared such by thejudges, happened to stray outside the limits of the asylum, whether by imprudence orby chance, and if once outside he was killed by the closest relative or the heir of thedeceased, the latter was not held to be guilty of murder. Such was the privilegegranted to the vindictive spirit of the blood avenger [Numbers XXXV, 27].Nevertheless, all this was later clearly forbidden by Him who was the true end of the



law, by Jesus Christ the perfect doctor, the infallible preacher of virtue [Romans X,4]; and even had the Jews [457] taken note of it, they would also have found thecondemnation of things of this sort within the precepts of their own law, precepts thatare in essence the same as those of nature and of the Gospel.

I have thus proved quite decisively, so it seems to me, that mere permission orimpunity under the laws does not always authorize before the tribunal of conscienceand reason that which the laws permit. And what would it be, if I were now to go intothe detail of the many things that, though permitted almost everywhere, are clearlycontrary to the essential duties of man in general, or of a good citizen, or of thedifferent statuses of life? But to do that would require a complete account of themanners of our times, and the limits of the present discourse allow scarcely enoughspace to give a few samples.

There have been laws against idleness, among the Egyptians, the Athenians, theSpartans and the Lucanians. [See Ménage, on Diog. Laerce., Book I, §.55; and MrPerizonius, on Elien., Var. Hist., II, 5; IV, 1.] There everyone was obliged to declareto the magistrate his means of livelihood and his occupation; and those who foundthemselves without a profession were punished, to the extent that in Egypt and atAthens, under the rules of Dracon, it was a matter of paying with one’s life. Buttoday, if one excepts Persia, where it is said this ancient regulation has been kept inforce [J. Cartwright, in J. de Laet., Descript. Pers., p. 260], I know of no country inwhich one may not be idle with impunity, and in which one believes one cannot beidle without fear, once one has the wealth to do so, or is satisfied with what one has.In certain countries, it is true, one is more subject to regulation than in others, buteverywhere there is a multitude of people who even [458] boast that they pridethemselves on spending their days calmly doing nothing but drinking, eating andamusing themselves. Yet is there anything more unworthy of man, naturally endowedwith so many faculties of body and mind, than to waste them in feeble indolence? Isthere anything more insulting to the generosity of the Creator and Supreme Master,from whom men received these talents, some in greater number and strength, othersless, but all wonderful and useful of their kind; all fitting to give us a high idea of Hispower, His goodness and His wisdom; all fruitful in productions that tend ofthemselves to render human life happier and more comfortable? Is there anythingmore contrary to the duty of man, and a fortiori to the duty of the citizen who, assuch, beyond the general obligation to be good for something in this world, still has aconcrete commitment to make himself as useful as he can to the civil society of whichhe is a member? If there was not a great number of people, reduced by their conditionto the necessity of working assiduously, and some small number who do so for thelove of work and out of duty, what would become of the others, who wish to shirk it?Where would they find what they need to provide for their pleasures, or even for thenecessities of life? Most of them believe they are not obliged to work, because theyhave no need to do so, that is to say, because they would be in a position to choose theoccupation which most pleased them, and to which they would be most suited, andwhich they would therefore exercise with more success than so many others who arenot masters of their time, and who cannot employ their time as they would wish [459].



What a mental reversal, to seek to justify idleness precisely in terms that make theobligation to busy oneself even stronger! The freedom allowed by the laws on thisaccount does not provide any more valid an excuse. If they do not prescribeanybody’s style of life, if even in the shadow of their protection one can live idly, thelaws do not for all that relieve nor can they ever relieve anyone, no matter whom,from a duty imposed by nature, or rather by the author of nature, by the greatprotector of society. The laws do no more than lay on the conscience and the honor ofeach individual the responsibility for busying oneself in the most fitting andadvantageous manner. The impunity the laws grant is no more capable of disculpatingthose who embrace no useful and honest profession or occupation than of justifyingthose who with impunity seek exercise or employments for which they neither are norwish to become competent. The latter case is, perhaps, more common than the former;but neither is excusable. While more harm comes from involving oneself in thatwhich one does not understand, with the result that one does damage to the public andto many individuals, more than enough harm follows from involving oneself innothing, and living a wholly inactive life.

But I am mistaken. No, idle ones, yours is not a wholly inactive life: try as you might,you could never bear the crushing burden of total idleness. Nature, which has grantedyou so many talents, talents that you seek to neglect, has refused you this one that youoften sigh for. And please to God that you may always be as motionless as statues; orthat you may do nothing but drink, [460] eat and sleep like swine; or that you mayonly seek to end your boredom like that emperor who spent hours in his room,catching flies [Domitian, see Suetonius on his life, chap. 3]. But you have too muchtime left, when you would be a burden to yourselves if, in the absence of any honestor useful occupation, your passions did not provide you with a thousand shameful anddamaging amusements. Debauchery, malign gossip, gaming, criminal plotting andother such things, these are your stock in trade, for in the end you have one. But theseare also a deadly source of quarrels, disorder, public and private ills, which combineto earn you the titles of scourges and plagues of the state, and no-goods and uselessdeadweights of the earth.

Is it possible that one can lead such a life, and still believe that one is a moral person,and be so regarded by many people who do not have a more reasonable idea of trueprobity and authentic honor? Yet such is, shall I say, the glory or the shame of virtue,that everybody approves it, praises it, admires it in general, yet nevertheless therespect that is its due is most times given to vain phantoms, or rather to the oppositeof virtue, to its mortal enemy, to vice itself. In the commerce of life, how manyinstances of bad conduct do we not see, how many falsehoods, sometimes even gross,which walk as it were with head held high, and whose authors, under cover of the factthat the laws take no notice, even pride themselves on evading public censure? Youare someone’s friend, or at least you pretend to be. As long as there is no [461]conflict of interest, all is well; yet when a conflict arises, not only will you not make ityour duty and pleasure to give way, whether right is on your side or not, but, notcontent to claim honestly the rights you believe are yours, you will have recourse to athousand secret manoeuvres, a thousand tricks, to outdo your friend; you will try todarken his reputation, cost what it may, and sometimes spare no effort in defaminghim. You are not going to lie in wait for travelers on the highway, in order to rob



them, you are not directly taking someone else’s property, that is true; but you seekout hidden ways to get it, to draw it towards you. Sometimes you take advantage ofsomeone’s penury, of the sad state of his affairs, of his negligence or his ignorance, inorder to get at a very low price things that he could have sold elsewhere for muchmore. Sometimes you provoke a thousand disagreements, a thousand difficulties, athousand problems, a thousand complications for some poor Naboth, to force him,willing or unwilling, to strip himself of his father’s inheritance. Sometimes youconceal the faults, well known to you and of which you are often yourself the author,in something that you wish to dispose of at a better price than you should. A creditor,in return for a good service that he has provided, finds himself reduced either tosuffering or to losing part of his money, when an urgent need forces him to seekrepayment. A workman is deprived of benefit of his wages by the delays by whichyou keep him waiting and purchase his labor.

It would take too long just to note all the deviousness and injustices of this sort which,favored by impunity under the laws, are practiced daily by innumerable [462] so-called moral men, sometimes even by those who claim to be devout. What a shamefor them that they were not born in some country where legal permission extendedfurther still! Ah! They would have known how to exploit that situation! But let us notbe surprised that they make such ill use of the freedom that the laws allow them. Letus not be surprised that they explain this to the gross disadvantage of virtue’sinviolable rights. They no longer respect the sacred authority of the clearest, the mostexplicit, the most just laws, when the negligence of those who should ensure respectfor the laws makes impunity almost as certain as it is with regard to those actions onwhich the legislator in fact maintains a complete silence. It is futile for the laws toforbid pulling of strings and bribery: these are the only ways for many good people toimprove their situation. A thousand means are found to elude these and many otherlaws. Pulling of strings, in particular, is so common in every country that those withrectitude and a sufficient competence are reduced to seeking out friends and patronsto compensate for their not having on display a merit which alone should speak forthem, but which on its own is usually quite ineffective. Such is the life of these goodpeople, in coarse grain, that it would still be a great deal for them, and for the public,if the civil laws, imperfect though they are, were the constant rule of their conduct.

So here “it is long since we lost the true names of things,”19 to express myself in thewords of an Ancient, who himself gave the lie to his speech [463] by his actions, butfrom whom the force of truth drew some fine moralizing, whether in the mouths ofothers or uttered by his own lips. So and so is a good man; such and such a thing ispermitted; equivocal words if ever there were, poorly understood and misapplied mostof the time! A palpable example of the usefulness of that neglected art ofdistinguishing the different ideas attaching to the one term! A sad proof of the fatalconsequences that sometimes flow from neglecting grammar! Yes, by dint of sayingand hearing others say “This is permitted, who is going to stop me?,” weunconsciously get used to confusing impunity with innocence; we almost ceasedistinguishing these two kinds of permission, so often diametrically opposed one tothe other. All my preceding reflections aim to lay bare this unfortunate ambiguity,and, it seems to me, they leave no doubt about it. But let me be permitted to add one



word more, to underscore the ambiguity, and for this purpose to address some of thosepeople who seem to recognize it the least, or to abuse it the most.

Where shall I begin? To whom shall I speak? So many different characters crowd intomy mind that I have difficulty choosing. Let us take whatever by chance comes first.Whoever you may be that I omit to mention, or that I shall pass over, learn from whatI say to others the true sense of a word, a word on which it is no less important foryou to have some accurate ideas.

What strikes me immediately is that man of vanity, he who is also seeking always tohave himself noticed; in him I see his like. Men of ambition, you are thus permitted toconsider nothing as above your reach, to seek out [464] with the utmost zeal the mostfrivolous marks of distinction, to deploy every sort of trick to achieve your ends.Misers, you are permitted to make your money your idol, to enrich yourselves bydeceptions and frauds that are too subtle to be discovered or punished by the laws.Hedonists, you are permitted to live like little lords, to sacrifice everything to yourappetites as far as you can do so, without fear of public stigma. Men of influence,credit and authority, you are permitted to misdirect your patronage, to listen only toreasons of interest, kinship or recommendation. Men of justice, you are permitted tojudge according to fortuity, or to base your judgments on any reason whatsoever otherthan those of law and equity. Men of the sword, you are permitted to sell yourservices and your life to the highest bidder, without even thinking to examine thejustice of the cause. Men of commerce, you are permitted to subtly falsify yourmerchandise, to make it appear what it is not by presenting it in a false light, toexploit the naivety and ignorance of the buyer. Barkeepers, gaming-house keepers,publicans, you are permitted to offer youth every occasion and means for debauchery.Artisans, workmen, you are permitted to promise to several clients what you wish toprovide to none, to offer bad work for good, to apply yourself negligently to the task.Husbands, you are permitted to behave toward your wives like real brutes and pettytyrants. Wives, you are permitted to try the patience of your husbands to breakingpoint. Masters, you are permitted to mistreat your servants for no reason, [465]feeding them poorly and paying them poorly. Servants, you are permitted to take nocare for the interests of your masters, and to serve them only so far as they can seeyou. Fathers, you are permittedto give your children only bad lessons and the worst ofexamples, to think at most of amassing wealth for them, without troubling yourself tomake them truly virtuous and capable of the employments that you plan for them.Children, you are permitted not to respond to the rare diligence of a father whooverlooks nothing and who spares no effort for the sake of making you worthymembers of human and civil society. People of no matter what age, rank or sex, youare permitted to do a thousand similar things. But the same applies to you as it didunder an ordinance of the Spartan magistrates regarding the outrages committed intheir country by some young foreigners: Clazomenians are permitted to be withoutshame [Elien., Var. Hist., Book II, chap. xv].

It is for each of us to see whether he wishes still to profit from so disgraceful aprivilege. I leave it to the legislators to examine whether they could not, withoutundue complications, define more sharply the limits of what their laws permit, or atleast arrange indirect yet appropriate means to make more citizens willing to renounce



voluntarily the right that most believe they have under this poorly understoodpermission. Nor do I wish here to draw on the help of religion; I shall not put beforeyour eyes this plea by an apostle: “that whatsoever things are true, whatsoever thingsare honest, whatsoever things are just, whatsoever things are pure, [466] whatsoeverthings are lovely, whatsoever things are of good report, if there be any virtue, and ifthere be any praise, think on these things” [Philip. IV, 8]. By which he gives us tounderstand that we must not be satisfied simply with doing nothing that is against thelaws. Indeed no, I do not call you to the school of Jesus Christ, I call you to the schoolof your own reason. I do not cite you before the tribunal of Him who will judge theliving and the dead in the last instance, I cite you before the natural tribunal of yourconsciences. We must be human, before being Christian; and whoever does not listento the voice of nature will no more listen to the voice of the law or that of the Gospel.Pride yourselves only on having ideas and sentiments as reasonable as those of thewise of antiquity, I ask no more. This is what they said, and on which you will reflectat your leisure: “Is it not an insufficient thing, to conduct oneself well only to theextent that the laws require it? How much further does the rule of our duties extend,than that of the law? How many duties flow from natural affection, humanity,liberality, justice, good faith, on which the civil laws are silent?” These are Seneca’swords.20

Young men, (for it is concerning you that I must finish, since you are the occasion ofthis my discourse), are you too permitted to neglect those duties that are yours, and toabandon yourselves to dissolute behavior? Ah! if your parents, [467] if those who aremost concerned with directing your conduct, are sadly willing to grant you such afatal freedom, may it not please God should you find any support in us on this matter.May it not please God should we neglect any of our responsibility for stopping theheat of youth from overcoming you, and for forming in you early those gooddispositions that will give you immunity from the pernicious lures of the bad thingsthat the laws, or your parents, may permit. But it is not possible constantly to overseeyour every action; and you know only too well how to hide them from the mostintense vigilance. Beware of yourself, each time you are tempted to do somethingwithout your superiors’ knowledge or approval; you are not yet at a stage to be able togovern yourself, and you must question your desires. You prefer by far the trivial tothe substantial, the pleasant to the useful; and if the ideas of the good touch you just alittle, when they are put to you in a certain way, they still have infinitely less powerover you than the ideas of your passions. Keep in mind, therefore, that nothing you dowhen you follow your inclinations alone is permitted to you. Take care not to imitatethe bad examples of older people, and pride yourself on actually being smarter thanthose who would always be by comparison less smart than you, were you to act likethem. Follow the precepts of your superiors, who are wise and committed [468] toyour well-being (you will easily know who they are), and do nothing that mightdisplease them. Love them in your turn; fear them too; take heed of the effects of theirjustified indignation. We have to take you as best we can; and at a time when reasonis still weak, it is often necessary to bring in some appropriate constraint to overcomethe obstacles that would end by making you unreceptive to reasonable sentiments. Ifnothing can be obtained from you by kindness, you will nonetheless be made to obeyby fear, such that we shall have nothing with which to reproach ourselves.



But this is not the time for punishment or censure; this is the day for praise, the dayfor rewards. We give them with the greatest pleasure in the world, even to those whohave barely merited them. May this encourage them, and encourage others, to give usday by day ever greater proofs of their commitment to study, and to all their dutiesgenerally!




Discourse On The Benefits Conferred By The LawsIn Which It Is Shown That A Good Man Should Not AlwaysTake Advantage Of The Benefits Conferred On Him By TheLaws

Magnificent and most honored Lord Bailiff, most honored Lords of the Council ofthis City, learned and respected members of the Academy, my most honoredcolleagues, listeners of no matter what rank, sex and age.

If to have commenced is to have done half the work, as an antique saying puts it,1 tohave done half is to have finished. Yet [472] in taking up today the topic half of whichI treated a year ago on a similar occasion, I fear that I face no fewer obstacles toovercome, no fewer—and perhaps more—prejudices to confront, than if I was still atthe starting point. I am like one who easily agrees to a principle based on reasons towhich he sees no objection, then at other times just as easily contradicts himself whenhe recognizes certain consequences arising from his agreement that he had notnoticed. One should abandon the clearly contradictory maxims to which one adheredwithout knowing why, but which in practice one has become used to following with acertain pleasure. One then looks for what is needed in order to question or, rather,entirely to reject certain awkward truths, which have emerged to dispel our easy error.If anyone followed what I previously said, I would like to think that some will havebeen almost persuaded that mere legal permission—the mere silence of thelaws—which is finally nothing but an impunity, does not prevent many thingspermitted by the laws from being truly bad and dishonest. But when you hear meroundly condemn the exercise of certain positive privileges granted by the laws,privileges of which virtually no one hesitates to take advantage, I do not knowwhether you will at once decide this is a folly, no matter how clear its links to whatyou recognized were sound principles, [473] and then rebel, without more ado,against arguments which you had found striking.

Whatever the case, it will not deter me from following my plan, or from taking myideas as far as they will go. Men’s fickleness, whims and prejudices must not preventus from following our argument through, nor from proposing some important truthswhen there is the opportunity. We would deem that we had done all too little, were weto leave things standing as they were in our previous discourse. To do so would be tocontent oneself with having attacked only the most obvious prejudices, leaving themore subtle ones undisturbed, that is, those which are the most difficult to dispel.Thus today, in completing my functions as Rector for this solemn occasion, let us—ifit is possible—finally disabuse those who, under the shelter of human laws, believethemselves authorized to ride roughshod over the laws of God and of nature. Let usshow, for this purpose, that in good conscience one cannot always take advantage ofbenefits conferred by the most explicit civil laws.

There are some totally unjust laws from which, it follows, only injustices can flow.There are laws, in themselves quite just and created for sound reasons, but that confer



benefits from which the interested parties sometimes cannot profit without injustice.There are laws the benefits of which we can always enjoy without doing harm toanyone; yet what strict justice then allows, some other virtue in certain cases forbids.Such will be the order and structure of this discourse.

I

[474] I repeat, first, that there can be, that there have in fact been, and that there arestill some totally unjust laws. Such laws, in consequence, always lack the virtue ofrendering just and equitable the enjoyment of the benefits they confer. It was longbelieved that among the ancient Romans a law of the Twelve Tables, that is, one ofthose famous laws developed with such care and circumspection, expressly permittedthe creditors of an insolvent debtor to kill and dismember him, each taking a part ofthe debtor’s body.2 This is a clear example of a law as cruel as it is absurd, one that iscontrary even to the interests of those whom the legislator intended to favor.However, some years ago, a famous Dutch jurisconsult [Mr de Bynkershoek, Observ.Jur. Civil, Book I, chap. I] restored the honor of the Decemvirs of Ancient Rome.With critical advantage over the wise men of Roman Antiquity themselves, for whomthe archaic terms of the Twelve Tables could not but remain obscure, even though theLatin of those times was their native tongue, he demonstrated to us in an entirelyplausible manner that in the law in question, the legislator had sought to permit notthe killing of the debtor, but his sale at auction, [475] such that the creditors couldshare the price of his freedom amongst themselves. Nevertheless, it remains thatdistinguished scholars, philosophers no less than jurisconsults—whether a Quintilian[Instit. Orat., Book III, chap. vi, p. 261] or a Cecilius, whether a Favorin [see AulusGellius, Noct. Att., Book XX, chap. i], an Aulus Gellius or a Tertullian [Apologet.,chap. iv]—found nothing strange in the supposition of civil laws created in such astyle as to afford inhuman privileges, contrary to the most evident laws of nature, asQuintilian gives us to believe.3 And this was not the only instance that they hadnoticed.

Here is another example, well attested, even if it went unnoted until recently, andwhich, if not of the same kind, nonetheless has something very harsh about it.4Among these same Romans, up until the time of Praetor Cajus Aquilius Gallus, inother words for more than three centuries following the establishment of the laws ofthe Twelve Tables, one had to take every care not to use—even in jest—theconsecrated terms of stipulations or formal promises. Suppose one father had said toanother, in conversation or at a festival, when nothing was further from the issue thandiscussion of serious business: “Do you want to marry your daughter with my son?,”if the other person had responded, by [476] way of joking and banter: “I so wish,”then the former had only to take him at his actual word. The party for his son wasfound. It was futile for the girl’s father to claim that he had neither intended nor givenreason to believe that he had any such marriage in view; it was futile for him to provethat the words by which he had supposedly committed himself meant nothing more, inthe circumstances in which they were uttered, than if he’d spoken them in his sleep.No joking was tolerated, and the judge would without further trial find against him. Itwas obligatory to go through with what an impertinent plaintiff wanted, one who



under the pretext of an apparent agreement, extorted an imaginary promise as unjustlyand with all the violence of a highway robber. Such was, for some centuries, thesuperstitious attachment of the Roman courts to the letter of the law and its formulas,and this despite a manifest intention to allow these words a usage quite other than thatwhich they had at law. Even when the Praetor, of whom I spoke, had recognized theinjustice and the need for a remedy, he dared not act directly; he contented himselfwith avoiding the plea by allowing an exemption from fraud for the party whom theother was bold enough to summons to fulfil a promise that had not in fact been made.

Since then, on other matters, we still find laws no less contrary to equity. Judge for[477] yourselves, whether the following law does not deserve to be described in thisway. A man purchases some wine that he must measure and collect within a certainlimit of time. This he fails to do within the time. The seller, who wishes to use thebarrels, can then, according to Roman law, pour the wine away; nothing more is askedof him than that he warns the purchaser. The jurisconsult Ulpian, whose opinion wasauthority on this matter, openly admits that it would be better not to go to thisextreme; that there would be other courses of action more fitting in order not todeprive one of the two persons of the use of his goods, and at the same time conservethe other’s goods; that the barrel owner could hire other barrels, at the expense of theperson who owns the wine, or sell the wine for his own account as profitably aspossible.5 Nonetheless, Ulpian dispenses with all this, and grants the owner of thebarrels complete freedom to empty them, without regard for the loss of the wine, andwithout concerning himself as to whether the one to whom the wine belongs hasencountered obstacles that prevented him from coming to collect it.

Let us leave the Romans there, and pass on to other peoples. Here we shall see,beyond doubt, some no less palpable examples of laws that scarcely conform tojustice and equity, the maxims of which these peoples, all things considered, have notcared to consult. First to be presented is that supremely barbarian law or custom [478]concerning the goods of those who have been shipwrecked. Imagine two vesselsdriven by a furious storm and about to go down. The men on one of these vessels, toavoid drowning, discharge the cargo as quickly as possible, jettisoning their mostvaluable goods into the sea. The others do not have even this chance, their vesselsuddenly being smashed on a reef. However, the storm abates, and the former’s vesselarrives at safe harbor, without further ill than the loss of cargo; the others, whosevessel has perished, manage to survive by swimming, or in a skiff. By a fortunatechance, the effects of both are washed up on the shore. They lay claim to these,justifying their right. There is no room for doubt that what has come ashore is trulywhat they had on board their vessels. But the ruler of that coast, more cruel than thewinds and the waves, seizes or allows certain people to seize this sad collection thatthe ocean seemed to have delivered to him only so he might have the pleasure ofrestoring it to the rightful owners. In the circumstance where humanity should bemoved to console these wretched men, indeed to aid them with one’s own goods,instead they are stripped of what was left of their [479] own. [See what I have said onPufendorf, Book IV, chap. xiii, §.4, note 2, third Edition.] If we do not distinguishhere between the subject or citizen and the foreigner, what has become of the bond ofthe civil pact that called for protection and special assistance? What if we indulge inrobbing foreigners, by withholding that which the ocean had restored to them? Is not



this a relic of the savagery of those ancient times when all those who were not fellowcitizens believed they were right to treat one another as enemies; when it was noaffront to ask unknown travelers: “Are you bandits, sirs? Are you pirates?,” and nodishonor for them to reply: “Indeed we are”?6 Perhaps you imagine that this was anestablished custom only among pagans and infidels. [See Grotius, Droit de la Guerreet de la Paix, Book II, chap. vii, §.1, note 3; and Selden, Mar. Claus, Book I, chap.xxxv, in fin.] But no, it is under Christianity that we see it most generally adopted.7And whilst the Siamese have a law explicitly forbidding it [see in Moteri’sDictionary, under “Siam,” the article “Manners and customs of the Siamese”], thereare as yet few Christian states in which consideration has been given to limit therights of the State Treasury over things that have escaped shipwreck, such that thosewho have lost their goods have time enough to come and reclaim them.8 What ismore, we learn of certain places along the Baltic Sea, where Protestant preachers pray[480] to God in his temple that He may please bless the right of shipwreck, as theycall it.9 What strange prayers, no matter how one views them, and scarcely worthy ofa minister of this holy doctrine, which breathes only justice and charity!

Do you want another similar example? It is easy to provide one. A man has beenrobbed. The thief is arrested, together with the stolen goods. It is known from whomhe stole them; he admits everything. The owner asks for return of the goods. But,instead of returning them to him, the Treasury or the judges seize the goods. Thiscustom, still practiced in some places, was explicitly authorized under a law of theSaxons [Specul. Saxon., Book II, artic. 25 and 31]. And, even though it was modifiedby allowing the owner of the stolen goods a year and a day to come and reclaim them,the Emperor Charles-Quint was right to abolish this law [Ordin. Crim., arts. 207,218], together with that other law of which we spoke. The injustice of it is no lessevident [see Pufendorf, Book III, chap. i, §.2, with note 3]; and though some colorcould be found to disguise it, nothing is more contrary to good policy than such ausage. Of itself, it tends to unsettle certainty [481] of possession with respect to allmovable property, and virtually assures impunity to rogues. For, in the end, whowould pursue a thief from whom he has small hope of snatching back his goods, savewith help from the public forces, when—in the event that the thief is caught—all theowner can expect is the distress of seeing his recovered goods pass irretrievably intothe hands of another, who has no more right to them?

Shall I add, to broaden the range of examples, that there have been countries wherethe princes and great lords had acquired over their vassals the right—was it infamousor grotesque?—to take the place of the newly-married husband on the wedding night?This was once established in Scotland by an explicit law, one that was abolished onlyafter a long space of time;10 and even then, they changed the privilege into a kind oftribute,11 which is still in existence, like a perpetual monument to the ancient usage,of which proofs are found elsewhere, even among the canonicate.12

We shall also note that in England (so difficult is it even under the best orderedgovernments to rescind bad laws once they are established) [482], a husband who inthe sight and knowledge of all, has been away from his home for several years,provided that he has not been outside the realm or the island as a whole, is obliged bythe laws to recognize as his own a child born to his wife during this long absence.



[See Eduard Chamberlayn, Notit. Angl., Part I, chap. xvi; and Meteren, Hist. des Pais-Bas; in the description of the Laws and Police of England, Book III, fol. 271, of theFrench Translation.] This undeniably favors, on the basis of groundless presumptions,the unfaithful mother and the actual father, to the prejudice of the husband who hassuffered a savage outrage at their hands. It does legitimate children a visible wrong byallowing the bastard child to compete with them for the succession.

If these examples do not suffice, I do not know what more is needed to persuade youthat laws or received customs sometimes accord rights and privileges that are alwaysunjust. All those found to be of such a nature (and perhaps more than we might expectwill be uncovered, if everyone examines the laws and customs of his own country), allthose which appear such, no matter how well authorized by human tribunals, aresurely the result of a shameful indulgence, exploitation of which could be approvedneither before God, nor before men who have sound ideas of justice and equity.13This much is self-evident; and what I said in the previous discourse excuses me frompausing here to prove it.

II

But there is more. It can happen, and often does, that laws directly [483] or indirectlyconferring certain benefits contain nothing unjust in themselves, and yet to enjoythose benefits would be unjust. This proposition, which at first sight seemscontradictory, will become crystal clear once we have drawn attention to theprinciples on which it rests.

Not everything that is just is susceptible, by its nature, of being prescribed by the civillaws, as we have sufficiently established in the preceding discourse. But evenregarding what lies within the ambit of the civil laws, things cannot always beregulated in the manner most conforming to the immutable laws of justice that applyto everything and everywhere. A law has no point if it is not implemented; but farbeyond this, such an unimplemented law is then harmful, because it provides groundsfor disregarding the legislator’s authority even with respect to other laws. Now, if wewished to take this to the last detail, if it was necessary to recognize the very leastinjustices and to eliminate them by public authority, it would be very difficult, not tosay impossible, ever to complete the task. Moreover, it is very important to reduce thenumber of law suits as far as we can; their multiplication remains a real problem,more so than the freedom that allows the rules of justice to be observed only up to acertain point. Danger also follows from allowing the slightest exception to certainlaws, and above all from granting those judges having authority to pursue cases intheir own right the power to allow exceptions. Rather, these laws must be let stand[484] in all their force, even when particular circumstances might place the presentcase beyond the sphere intended by the legislator. The diversity of characters andmanners, times, places and other circumstances, requires laws sometimes to accordtheir authority to certain just things, and sometimes to withhold it. Every legislatorgenerally proposes, or should propose, like Solon the famous Athenian,14 to makelaws that are not necessarily the best laws in themselves, but the best that the citizens,or the subjects, are capable of receiving. And no matter how wise the lawmaking, it isalways true to say, with the Roman orator, that the laws redress injustices in one way,



but the philosophers correct them in another. The laws restrict themselves to thatwhich is crude and palpable, as it were; the philosophers (and each person must be hisown philosopher, as each can be) dissect everything, to the very limits of an attentiveand penetrating reason.15 It is thus the duty of each person to make good theunavoidable imperfection of the most excellent laws, the authors of which could not,even had they wished to, exempt whomsoever it might be from observing that part ofjustice and equity which they were constrained to leave outside their jurisdiction. Forthe rest, they force no one to take advantage either of the impunity the laws allow[485] or of the benefits they confer in this respect; they do not prevent you renouncingthese.16 And there are many cases where men have publicly renounced their impunityor benefits, although the public interest and the end of the laws do not allow such actsof renunciation to be cited in the regular course of justice. In short, the civil laws arethemselves most often just, but they do not embrace all that is just. If they sometimesrefuse their protection to those who suffer injustices, if indeed they seem to accord acertain right to those who commit injustices, this is without prejudice to what eachperson must do willingly, in compliance with the inviolable rules of virtue, andindependently of the authority of human legislators.

Examples are not lacking that let us appreciate the truth of what I have just said, andby means of which one will easily judge like cases that will present themselves inrelation to other matters.

If there is some duty that the law of nature prescribes without fail or exception to allmen, it is undeniably the duty to keep one’s word, to do exactly that which one hasknowingly and freely agreed upon with another, and without there being anything inthe matter itself that could annul the agreement. Nonetheless, it has not been judgedappropriate always to enforce the word that has been given, and there have beensound reasons for proceeding in this way. It would be bad policy, I admit, to allow noaction at law for any sort of [486] promise or contract, as has been the practice incertain countries.17 Given how most men are made, this would have the immediateeffect of banishing confidence and commerce from the world. If you entirely removeconstraint, there will be few people with whom one wishes, or is safely able, to enterinto an agreement other than one that is executed immediately by both parties. But inorder to prevent surprises and the remorse of an agreement too casually entered into,one may very well recognize promises and conventions as being valid only when theyare made in a certain manner or bear on certain things. It is then for each person totake appropriate precautions; and if one runs the risk of sometimes being deceived,one now at least has a means of knowing those who are capable of deception, andthose in whom one must no longer trust. This is the touchstone of a sincere probity.Thus, under Roman law, when it was not a question of contracts having a specificname and whose obligatory nature was fully authorized at law, if you say to someone:“I give you this so that you give me that,” the agreement is sound and valid.18 [SeeDigest., Book II, title xiv, De Pactis, Leg. VII, §§.1, 2 et seq. Leg. XLV, & BookXIX, title iv, De Permutat. rerum, Leg. I, §.2.] But if one says: “I shall give you thisso that you give me that,” it is not sound and valid, whether [487] such a promise iswritten or spoken. However, if in the form of a question one said: “Will you give methis, and I shall give you that?,” and if the other party, being present, had answered:“Yes,” then there is a promise that has full force. In good faith, are we to think that



formerly (for this futile subtlety no longer holds today, even in countries where theRoman law is followed), are we to think that formerly a good man found himselfobliged or exempt from keeping his word, depending on whether he had adopted, ingiving his word, this or that turn of phrase which, finally, carried the same sense aswhen one was in fact talking and acting seriously? Such was indeed the view of thesages: Seneca is quite clear on this.19 And is it not apparent that they moved past thepure formalities of the stipulations, and that they renounced the right to exploit aformal error, from the moment when one party counted on the word of the other, andthe latter showed that he could count on that word without need for further surety? Itis simply that, then, they wished not to be subject to any sort of constraint, but ratherto account for any breach of faith only before the invisible tribunal that each had inhis heart. Therefore the Roman jurisconsults themselves recognize that, in such a caseand [488] others similar, natural obligation retains its full force.20 And, apart fromvarious exceptions which, in those times, involved nullification of agreements ongrounds of some formal error,21 agreements of this sort achieved their effectindirectly, according to the Praetorian law, on all occasions when one had undertakento demand nothing of that which was due, no matter what the reason; because at thattime the promise tended to relieve an obligation, which could have given rise to a lawsuit. This is clear proof that the purpose of these laws, which declared otheragreements null and void on the grounds of a formal error, was not to break the sacredbond of the given word, but simply to regulate things in a way that was believed to bebest for public utility. The proof is also that the Emperors Diocletian and Maximianfixed the damages incurred when one was relieved in a contract at a level above halfthe fair price [Cod., Book IV, title xliv, De rescindend. vendit., Leg. II].

The privileges of minors, in relation to the nullity of agreements contracted withoutthe approval of their guardians, are also undeniably very wisely delimited, and itwould not have been appropriate for the judges to introduce exceptions. But does notgood faith require exceptions? Do we not sometimes see young people who, thoughnot yet at the age of majority fixed by the laws, are no less prudent and competentthan many adult persons, and no less so than they themselves will ever be? May theynot [489] engage with persons who do not believe them to be still dependent, in theirdealings, on another’s will, or who have no reason so to believe? But once they areknown to be minors, if no fraud has been used toward them, nor any artifice, and evenif they have acted entirely freely and in full knowledge, even if one has dealt withthem solely for their pleasure, have they not manifestly renounced their benefit underthe laws, by the very fact of seeking to enter a serious agreement while fully aware oftheir own legal status? Would it not be a signal act of deceit on their part to takeadvantage of the fact that they had been treated as competent to reason, and had beentaken at their word? Have the laws, in order to prevent minors from being deceived, infact helped them to be deceivers, and given them the means to profit at others’expense, by granting them full restitution or by providing no form of action againstthem at law?

The same may be said concerning the agreements contracted by women, without theauthorization of husbands or some male relation. This sex, that in various ways we sounderestimate in relation to ourselves, is sometimes more intelligent and circumspectin business than those from whom we wish women to take counsel. And the particular



virtue, that we have as it were assigned to the sex as its share, requires that womentake every care to flee from whatever has the scent of infidelity.

In all this, I do not make exception for certain agreements in which there can be, andoften is, [490] something immoral and illicit, but where this is only incidental to theagreement. Thus in gaming, for instance, where the laws allow the misfortunategambler to demand return of his losses.22 Society sees it as a gross injustice, as it hasalways been seen, and rightly so, that a man who has played willingly and lost fairlyshould have recourse to the courts to recover his money or refuse to pay up, on thegrounds that he cannot be compelled to do so.

The severity of the laws of the Ancient Greeks and Romans against insolvent debtorswas perhaps necessary [see Saumaise, de Modo Usurarum, chap. xvii, xviii], but I amnot sure that in recent times we have not relaxed matters too far. Yet it was up to thecreditors alone to be less severe; and I will be told that they sometimes needed tomake exceptions that the legislator had not judged it appropriate to make. There iscertainly a clear difference between a debtor in bad faith and a negligent or imprudentdebtor; between a man who has made himself incapable of paying by his bad conductand a man who is reduced to this incapacity as the result of a misfortune that rendershim deserving of sympathy. When one lends to another, especially with interest, onetakes or should take account of the possibility that a thousand unfortunate accidentscan happen that make it impossible for the debtor to repay the debt. All that can berequired of him is that he does not expose himself to such accidents. Is it thereforejust, [491] when it is in no way his fault, to clap him in irons, to make him one’sslave, either in perpetuity or (which often comes to the same thing) until he has paid?If the laws permitted it, even in this case, it is not—as Seneca aptly put it—that thelegislators had been insufficiently bright to see that one cannot treat as identical,without grave injustice, those who have squandered their fortune in debauchery orgaming, and those who, as the result of a fire, a theft or some other accident, have atthe same time lost both their creditor’s goods and their own.23 Rather, to teach mento be true in their commerce, it was thought better that a small number of peopleshould run the risk of being excluded from offering a legitimate excuse, than thateveryone should be able to find some specious pretext to avoid guilt.

But let us turn to examples of another kind. The law of prescription provides one thatwe should not omit. This law, no matter how odious it appears, no matter that it hasbeen taxed with blatant and perpetual injustice by overly rigid casuists, nonethelesshas as its fundamental goal—if one takes the trouble to see it—that of securingproperty in goods, a goal that clearly requires both that a possessor in good faithshould, as such, enjoy the full rights of the true owner, and also that he should himselfultimately become the owner.24 [492] Nor do I wish to treat as unjust the Roman lawswhich at one moment authorized prescription without evidence of good faith, but atanother time required good faith only at the outset of possession. [See a dissertation ofMr Thomasius, De perpetuitate debit. Pecuniar., §.32 et seq.] In view of the difficultythat would very often lie in proving that a man knew the property he was acquiring orpossessed belonged to someone else, the legislator is quite justified in judging itappropriate not to take this circumstance into account, so as to obviate some vastlytangled law suits. Yet, whether or not the civil laws presume good faith on the part of



the possessor, good faith is nevertheless necessary according to natural law, whichalways requires it, from the outset of possession up to the time when possessionbecomes ownership. The legislators neither would nor could accord a true right eitherto retain a property known to belong to someone else, or to appropriate that propertyto oneself, even if you believed it to be yours, until a considerable time had elapsed,so that the former owner himself, with good grace, could renounce all his claims. Ifthe laws uphold a possessor in bad faith, after expiry of the term of the prescription,they can no more render him the true owner in the sight of the tribunal of reason andconscience than they can so render a man who knows full well that he failed to deliverthe sum against which another gave him a promissory note, on which score the latteris nonetheless obliged to make repayment, once the time has lapsed beyond which oneloses the legal capacity to prove that the original sum was never accounted for. [SeeInstit., Book III, title xxii, De litterarum obligat.]

This last case is notable, and merits a separate article. But here is something that [493]is just as striking. Before the Emperor Zeno, who ruled in the East at the end of thefifth century, if in certain cases one had demanded more than was owing, that is, notonly if the sum owing was less than what was now demanded, but even if one hadsought repayment at another time or place, then no matter how small the difference,under Roman law one lost one’s case, on that ground alone.25 [See Instit., Book IV,title vi, De actionibus, §§.33, 34.] If one had demanded less, and if later one hadrealized that much more was owing, though the judges doubtless saw this too, theywould not adjudge the creditor entitled to anything more than he had first asked. It isundeniably right to stop a false debt from being boldly substituted for a true debt; andevery person must take care not to claim repayment greater than he can legitimatelyrequire. Yet is it right, for instance, that a man who is recognized as being legitimatelyowed nine hundred and ninety nine écus should entirely lose them, because he askedfor one thousand? Is there ground for presuming that he was willing to risk the entiresum, and so large a sum at that, just to gain one écu? Is it not easy to make a mistake,when the additional amount is so slight? How does the debtor dare to appropriateanother’s property, by sheltering behind an accident that would not have befallen thecreditor, if the debtor had given satisfaction with good grace, as he was [494]supposed to do? If, because of this accident, the courts did not condemn the debtor topay, it was because their powers were constrained by the laws, which, in order toavoid certain improprieties, imposed on the judges a scrupulous precision, neither theforce nor the aim of which were finally to extinguish the debt. Proof of this is that thecreditor, having had his request rejected, did not easily obtain a full restitution fromthe higher tribunal; if, notwithstanding this, he could cite strong reasons to show thathis mistake was one of ignorance and that he had committed no fault, he was relievedjust as if he had been a minor.26 But supposing that the surplus of the true debt hadbeen considerable, and that there was ground for presuming bad faith on the part ofthe plaintiff, was it not compensated by an equal presumption that he could at leastraise with no less justification? Was the debtor, who had allowed himself to be citedin the original action, without offering what he truly owed, himself acting in goodfaith, and had he good grace on which to pride himself, to the detriment of thecreditor? The same can be said of an excess demand that advanced the due date oraltered the due place.



For those who demanded less than was owed to them, there was no indication thatthey intended to acquit the debtor of the amount that they had not included in theirdemand for repayment. A donation cannot be presumed, and must not [495] bepresumed, in the absence of clear indications. And when one is in the mood todispense liberalities, it would not be towards a person who wished to extort from youeven greater liberalities by his refusal to pay the balance of that debt, part of whichyou had been willing for him to discount. Nor, moreover, in the present instance couldthe plaintiff be suspected of some evil design that would make him deserving of theslightest punishment. If at the very outset he did not state his claims in their fullextent, what harm can that be to the debtor? It was for the latter to signal himself themistake; he would have done so, had he taken care to render to each his own. And onhis part it is a huge diversion, and a further injustice, to compel the creditor tocommence another law suit.

But this is not the sole example of injustices committed in favor of laws that regulatethe process of judgments. At all times and in all countries, there has been much abuseof the advantages that can be derived from formalities generally. These formalities, Iadmit, have their use and, sometimes, their necessity. They are required in greater orlesser number, depending on the times, the places and the issues: as few as possible,that is always the best. But it is certain that, in many places, by dint of multiplyingformalities, the accessory has been made the principal, giving rise to many moreproblems, some of them considerable, than those to which one sought a remedy. Thisis a vast field for creating diversionary tricks.27 Here you have a good means ofmuddling [496] the clearest cases, and of causing the most just of causes to lose; ofdragging out trials; of imposing on one another ruinous expenses, from which only thejudge and the lawyers benefit, and which often mean that in winning one’s case one iswinner of nothing. But let us leave to those whose task it is the responsibility ofpreventing what was established for the sake of order from degenerating into theoccasion for disorder. It is enough to have brought it to your consideration thatindividuals are profoundly deluded in imagining that the observance or the omissionof formalities of the bar, whatever they may be, can ever create a valid right to retainthat which one owes, or to appropriate to oneself that which otherwise wouldlegitimately have belonged to another. It is not the legal formalities and theprocedures, nor even the judge’s sentence, which make a thing belong to someone orcome into their possession; it already belongs to him or has already been acquired byhim. The judge neither seeks nor is able to do other than to recognize that person’sright, and to put or keep him in possession of that which was refused him, or aboutwhich he was challenged.28 He who is forced to plead in order to have or to hold hisproperty, could not lose it through the sole lack of some incidental thing, establishedwith a view to enabling each more easily to obtain his own, but which, by accident,now impedes instead of serving this end. [497] The effect that the laws have tied tothe omission of formalities does not fundamentally make the cause of the one better,nor that of the other worse; and it is not even the intention of the legislator, nor of thejudges, to have things regarded in this way. It is no more than a matter of certainpreliminaries that were deemed important enough for a case not to proceed further ifthese preliminaries had not been duly met, and to impose a sanction on whoever hadnot complied, in some respect or other, by not commencing discussion of the mainissue. But since, supposing it well founded, an existing right is simply being



recognized, it is recognized in full. If there is any fault on his part, the first and mostconsiderable fault—or rather the only fault that here justifies the parties’ going tolaw—is wholly that of the other pleader. It was the latter’s duty to warn of theproblem, and not to seek to profit from it. Given its inflexibility, the law depended onhim, regarding what the legal officers could not themselves do, restricted as they areby the generality of the rules. The law waited for him to come to their aid, as he wasrequired to do. If he had sound reasons to allege, he was to renounce this privilege,which was a separate matter. In short, all the incidentals, all the factors external to thecase, everything that does not bear on the essence of the cause, detract so little fromthe right of the man who has right on his side that he is [498] not truly deprived ofright even by a final negative verdict on the principal question.29 It would be in vainshould all the courts of the world condemn a man who is not wrong; their error, nomatter what its source, could not alter the nature of things. Evil always remains evil;injustice, unjust. If the victorious pleader has in bad faith denied the debt, or even if,no matter how blinded he might have been by self-regard and self-interest, he wassufficiently aware to suspect and, however slightly, to recognize the injustice of hiscause, he remains the debtor, and even more so than before. Doubly guilty, doublyresponsible, both for the stubborn refusal to restore what belongs to another, and forall the damages and costs of the law suit. His debt only grows from one day to thenext.

Sometimes, too, one loses one’s initial case, solely because the actions on which itrests lack certain formalities, which have no relation to the right of the parties andwhich are established for quite another purpose than to order and assist the course ofjustice. A sovereign, for example, has need of revenue from taxation. To achieve thissimply and imperceptibly, he has a certain imprint made on paper that, as a result,commands quite a high price. He then orders that all contracts should henceforth bewritten on such paper, failing which they will not be recognized at law. Let ussuppose that a man, in making a loan, did not think of this, and makes do with a notewritten on ordinary paper. Do you believe that, as a result, he has anything less thanthe full rights of a creditor because in this way he lacks an adequate guarantee of[499] the debt? Will you dare, unfaithful debtor, to deny what you have written; willyou violate your word, detain another’s goods, under the pretext that the judges do notconstrain you to pay, in order to sanction a neglect of which you are at least as guiltyas the man to whose detriment you now seek to enrich yourself? The legislator rightlysupposed that there would be low and knavish spirits who would have no scruple inturning this kind of punishment to their own advantage; and it is for fear of having todeal with such people that the legislator hoped to render others circumspect andmeticulous in paying the tribute. But for all that, the legislator did not want the debt tobe confiscated for your gain, and when it was a case of true confiscation, you wouldhave no right to seek it for yourself.

Here we have some cases, of nearly every sort, in which a manifest injustice arisesfrom enjoying the benefits conferred by a law that in itself is just. The paradoxdissolves, and the duty of individuals is easily reconciled with the will of thelegislator.



III

This is not yet all. Here is something that will make what I have just established seemless strange. One must sometimes willingly renounce enjoyment of a benefit that is notonly conferred by a just law, but also whose enjoyment is always just.

If men are men, if they act as reasonable creatures, if they wish to conform to whattheir nature demands, if they are of a mind to show themselves worthy members ofthat universal society of which God is the author and protector, it is absolutelynecessary that they be religious observers of justice, but not of justice alone. There areother virtues which, while free from [500] all constraint, nonetheless carry a clear andimperative obligation. Conversely, this obligation is all the stronger for being free ofcoercion, since the man who imposes it thereby relies more on one’s willingness tofulfil the obligation. Yes, humanity, compassion, charity, beneficence, liberality,generosity, patience, gentleness, love of peace, these are not empty names, nor arethey indifferent things; they are not even new commandments contained in theGospel. Rather, they are sentiments which all reasonable persons in all times havecounted among their duties; they are dispositions that one cannot but admire andpraise in others, even in an enemy, though one may not feel them in one’s own heartnor wish to make the effort to install them there. Human laws, far from exempting usfrom such virtues, furnish a thousand occasions for their practice. Let us indicatesome of these.

A merchant and man of virtue finds himself reduced by misfortune of circumstancesto an incapacity to meet a payment whose term has fallen due. If the creditor forceshim, there is no way he can avoid bankruptcy; so here we have a ruined man. If he isgiven time, there is reason to hope that he will put his affairs to rights. This creditor isrich; he can, without inconvenience to himself, manage without this sum which,compared to what he has at his disposal, is inconsiderable. Were he to lose it, will hebe so hard-hearted as to ruin a man whom he can save?

Another wealthy man has had possession for the period required by the law ofprescription [501] of a property that he acquired by legitimate title, without everhaving the slightest suspicion that it belonged to someone other than the man fromwhom he obtained it in this way. So his right is established beyond any doubt. Theformer owner, who has since reappeared, has no claim; and, strictly speaking, nothingis owed to him. The same laws of justice that had given him a right in the property inquestion to the exclusion of all other claims have transferred this right to the presentpossessor in good faith by virtue of his length of possession. But notwithstanding this,this new master will not be at ease until he restores the right to the other man who lostit through no fault of his own, and who will benefit greatly from its restitution. If everthere was a time to be generous, this is it. And given that it is generosity towards onewho is in dire straits, compassion and charity are now allied with generosity.

A legitimate heir is deprived of an inheritance by a will in which defects are found, byvirtue of which he could have it annulled if he wished, something he could indeed dowithout giving anyone grounds for appeal. No matter how sure he is that thisdefective document nonetheless expresses the testator’s true and unforced wish, it is



not this wish that, of itself, should here be his rule of conduct. The formalities andother conditions without which a will is regarded as null and void were notestablished only to prevent frauds and trickery; another aim, perhaps the principalone, is to set limits to how one can dispose of one’s estate after death, so that theexpectations of those that the laws recognize for the succession are not easilythwarted. The testator could dispose of his estate to their detriment only by an [502]act that conforms to the law, the heirs having done nothing to indicate theirrenouncing the right to have the will declared invalid. In this way, when they ask forthe will to be annulled, no injustice is involved, whether toward the living or towardthe dead. But let us suppose that the inheritance is a trifle for the legitimate heir, andthat in allowing it to pass to the person specified in the will, he enables the latter tolive in comfort, he affords the man and his family a means of serving society far morefully than they could otherwise have done. Will he envy so many human creatures,like him made in the image of the supreme benefactor, refusing them an advantagethat he can so easily procure for them, an advantage that he should procure for themby acting in a more direct way than providence might do? If the circumstances do notinvolve the specified heir, a legatee can find himself in this situation: the legacy willhave been made to him on just grounds, say for important services that he rendered tothe deceased. So, again, let the will then be annulled, but let the legacy stand, and letjustice cede its rights in favor of humanity.

To this point I have supposed persons worthy of the good that is done them when onerelinquishes one’s legal right. But there are also cases in which one is called to makethis sacrifice even in favor of unworthy subjects.

A person has caused you harm by their gross and inexcusable imprudence. Nothing ismore just than to seek reparation, and the imprudence makes this entirely legitimate.But were you to pursue such reparation, or demand it to the full, the man who has tomeet the cost would, in so doing, be reduced to the utmost wretchedness; whereas, in[503] acquitting him in whole, or in part, you would be inconvenienced only a little ornot at all. Oh man, so often liable to need the understanding of your fellows, on thisoccasion show some understanding yourself; excuse the fault, forget it, if this ispossible; but at least, since it is up to you alone, do not pursue its ruinousconsequences for another man. Respect in the other man the fragility of your ownnature, and do not fail to exercise gentleness and charity, since these acts will shine allthe more and be the more deserving.

You have been maliciously slandered, you have been insulted. Will your first move beto seek satisfaction through the magistrate, satisfaction which often you may notneed? If your reputation is sound, if you have nothing with which to reproachyourself, the offender’s barbs will fall back on him alone. The best means of revenge,if revenge were permitted, is scorn. It will at least spare you anxiety and disturbanceof mind on account of a harm that in fact is imaginary, when it entails no real damage.

I wish there was something more than mere words that the wind carries away in aninstant. Let me suppose that someone has stolen from you, or withheld from you, ordemanded from you, contrary to all right and reason, something which mostlegitimately and most incontestably belongs to you. Ah! best let it go, as far as you



can without too much trouble, without some irritating inconvenience; give it up,sacrifice something, rather than calling someone before the courts, or letting yourselfbe called. It is as true for a law suit as it is for war: it is always an [504] evil; necessityalone can justify those who expose themselves to it. When I think of the ease withwhich so many people go to court, often for trifles, I do not know what it is aboutthem that amazes me most, whether a lack of concern for their duty, or a lack of carefor their true interests. What is one who pleads in court? Let us imagine him in thebest possible light; let us leave aside the bad faith, the devious mentality, the obliquepaths, the tricks, the duplicities deployed to influence or corrupt the judges. Let us,instead, suppose a man who believes his case to be well-founded, as indeed it is, whowishes to uphold or pursue his right but only by legitimate means. So what is aplaintiff considered from this point of view? He is a man who can scarcely be ofpeaceful mind: the rival party’s bad procedure irritates him; the more he has right onhis side, the more he conceives a bitterness toward the other party, toward all whotake the other’s side, toward all who have some link, some relation with him. This is aman who has abandoned his business, his most productive and most pleasantoccupations, in order to suffer so much distress, so much fatigue, so many rebuffs, somuch deviousness, so many disappointments, such great expenses; and all thiswithout knowing how long the case will continue, or whether he will win his case, nomatter how just it is, nor whether he will finally obtain damages which, when all isadded up, never equal what it has cost him. And if he wins, then he now faces adeadly and constant source of hatreds, animosities and enmities that sometimes persistbetween families from generation to generation, and from which is born an infinity ofevils. A Latin poet put it well: [505] “Is it possible that a person, who has first lost hiscase, could be so lacking in sense, so great an enemy to himself, as to want to spendtwenty years in litigation?”30 Let us say rather: is it possible that one would want togo to court when there is even the slightest chance of avoiding it, by compromising orby giving something up when one is not compelled to proceed by the state of one’saffairs, or by some other pressing and necessary reason?

At this point I seem to hear someone protesting at the upshot of my entire discourse:“If this is so, we should close the law courts and demolish the tribunals of justice; nomore judges, no more assessors, no more lawyers, no more procureurs, no moreclerks, no more ushers, no more of those whose only occupation is to exploit thefreedom people still believe is theirs to enjoy their legal benefits, and to exploitpeople’s haste to have recourse to law.” The objection appears strong: but the onething I find annoying here is that this objection is not strongly enough embraced bythose very people who silently agree, and so we cannot flatter ourselves that theprospect it envisages could in fact ever arise. Yes, please God that men may growwise enough to render redundant all those professions, employments and institutionsthat are based only on men’s follies! Please God that we may see the birth of a goldenage in which, each one of us taking care to give offence to none, but on the contrarybeing eager to do good to whosoever needs it, we may be disposed to forgive thefaults of others, to behave toward everyone in the same [506] manner that we wouldwish others to behave towards us, and to embrace and search out every possiblemeans to avoid disputes, or to resolve them amicably in the shortest possible time!But be reassured, you who are alarmed by the very thought of so happy a revolutionthat you would regard as fatal for your own fortune. There will always be only too



many quarrelsome and devious persons, who reduce the most pacific of men to thenecessity of using, despite themselves, the instruments of justice. Egoism, interest,human passions are your good guarantee for your revenues. Only allow that the rarefew who take their duty and their tranquillity to heart may avoid, insofar as they findit possible, having any dealings with you. May they be permitted to renounce theiradvantages.

Christianity prescribes this moderation in terms so strong that they have occasionedoverstatement [Matth. V, 39, 40]. “Resist not evil, but whosoever shall smite thee onthy right cheek, turn to him the other also. And if any man will sue thee at the law,and take away thy coat, let him have thy cloak also.” The least one can understand bythis, and all that a sound and judicious criticism finds here, is this: that one must not[507] always take advantage of the law of an eye for an eye, a tooth for a tooth; andthat, rather than proceeding to court to seek reparation for some trivial insult or toavoid losing some small possession, one must expose oneself to a further insult or to anew loss.

But here the pagans themselves, guided only by the light of reason, thought and actedin a manner that leaves many Christians covered in confusion. Among the pagans thiswas a common saying: “that right pursued too rigidly is a great impediment and asupreme injustice.”31 Cicero offers the following rule: “that, in many cases, one mustgive up one’s right; abstain from litigation, to the extent that one can do so withoutinconvenience, and perhaps somewhat further still.”32 Pliny the Younger missed nooccasion to desist from enjoying benefits the law granted to him. We see him at onetime making the donations or other charges imposed on him by a codicil that the lawsof those times deemed null and void on the ground that it had not been confirmed inthe subsequent will;33 at another time, we see him granting freedom and a legacy to aslave, who had no claim to either, because of the defective manner in which thetestator had expressed himself;34 [508] at yet another time we see him relinquishingto his country [the city of Como], instituted as inheritor conjointly with himself, hisportion of the inheritance, and a considerable portion, that he could have kept tohimself as entirely within his right;35 finally we see him allowing even his slaves tomake a form of will, and then executing their dispositions with the utmostpunctiliousness.36

Let us conclude (for it is time to finish, and we can do so), let us conclude withAristotle that “it is not exactly the same thing, to be a good citizen and to be a goodman.”37 The latter title has a far greater reach than the former. One may do nothingthat is against the laws, one may act only in accordance with the laws and,notwithstanding this, still fall short in an infinity of things that true probity demands.

But how to find some link here with the solemnity of the present occasion? How todraw from what we have said what is needed to address a small exhortation to theseyoung people? I glimpse something that will not be too far off our topic.

My children, we prescribe rules for your studies, we teach you lessons, we set youtasks: you have to be assiduous in your exercises, to listen attentively to your masters,to try to retain what they teach you, to do exactly what they command. But that is not



enough. If you have it in your heart to acquire all [509] the knowledge that is usefuland necessary to you, you have also to work for yourselves, and make time for that inthe leisure that you are allowed. Although, at your age, you have a great need to bepushed and guided almost constantly, you can nonetheless take some small steps onyour own, should you wish to. And there are some among you, who must be ready tomove ahead a little, beyond the master’s gaze. No matter what care is given you,however well you employ the time needed to work in a manner that will please yourmasters, there will often be more than enough time left for you to relax. And it is verydangerous lest you then become attached to things that are bad and harmful inthemselves, or that will turn you against work from which but little is gained, unlessyou love it. If you study only to complete the set tasks, if you do not early accustomyourself to taking your pleasure in your work, you will never reach the point ofexercising with honor the employments at which you aim. As you grow older, sourcesof distraction will multiply, and temptations will be stronger and more numerous; yetit is then that you will have greater need, from one day to the next, to study underyour own discipline, with commitment and eagerness. So we can do no more than[510] point the way. It will then be up to you to walk, to take care not to stop and notto wander. The best teachers in the world will then be able to do no more thanintroduce you to the sciences, give you some openings, and show the method to adopt.All this amounts to little, if one does not use it to go further by oneself, if one restscontent with the basic elements, and with a mediocre routine which has cost you nextto no effort but which you follow shamefacedly, to the great detriment of society,whose interests you could and should have furthered. If the rewards that we shall nowdistribute, according to custom, to those of you who have achieved some distinction,led to no improvement, they would not have been put to good use, and this would benothing but an empty childish ceremony. May God grant that we have no reason toregret the time we commit to it! May you surpass our hopes, and indeed our wishes, ifit is possible!

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[1.]The Whole Duty of Man, According to the Law of Nature, by that famous civilianSamuel Pufendorf … now made English by Andrew Tooke. The fifth edition with the



notes of Mr. Barbeyrac, and many other additions and amendments (London: R.Gosling, J. Pemberton, and B. Motte, 1735).

[2.]The original form of the work may be compared in the new critical edition of thefirst Latin and German editions. See Samuel Pufendorf, Samuel Pufendorf: De officio,ed. Gerald Hartung, vol. 2, Samuel Pufendorf: Gesammelte Werke (Berlin: AkademieVerlag, 1997). The reader should also consult the most recent and most accurateEnglish translation: Samuel Pufendorf, On the Duty of Man and Citizen According toNatural Law, ed. James Tully, trans. Michael Silverthorne (Cambridge: CambridgeUniversity Press, 1991).

[3.]Jean Barbeyrac, trans., Les devoirs de l’homme et du citoien, tels qu’ils lui sontprescrits par la loi naturelle (Amsterdam: H. Schelte, 1707).

[4.]For helpful overviews of Pufendorf’s life and work, see James Tully, “Editor’sIntroduction,” in Tully, ed., Man & Citizen, xiv–xl; and Michael J. Seidler, “SamuelPufendorf,” in the Encyclopedia of the Enlightenment, ed. Alan Charles Kors (NewYork: Oxford University Press, 2002). There is no standard biography of Pufendorf,but important contributions toward one can be found in Detlef Döring, Pufendorf-Studien. Beiträge zur Biographie Samuel von Pufendorfs und zu seiner Entwicklungals Historiker und theologischer Schriftsteller (Berlin: Duncker & Humblot, 1992).Also useful is Wolfgang Hunger, Samuel von Pufendorf: Aus dem Leben und Werkeines deutschen Frühaufklärers (Flöha: Druck & Design, 1991).

[5.]See Michael J. Seidler, “Pufendorf and the Politics of Recognition,” in NaturalLaw and Civil Sovereignty: Moral Right and State Authority in Early ModernPolitical Thought, eds. Ian Hunter and David Saunders (Basingstoke: Palgrave, 2002).

[6.]For a general overview, see Ian Hunter, “Natural Law,” in Kors, Encyclopedia ofEnlightenment. For more detailed treatments, see Knud Haakonssen, Natural Law andMoral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge:Cambridge University Press, 1996), and T.= J. Hochstrasser, Natural Law Theories inthe Early Enlightenment (Cambridge: Cambridge University Press, 2000).

[7.]Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, NaturalLaw and Church Law, 1150–1625 (Atlanta: Scholars Press, 1997), 314–15.

[8.]See Richard Tuck, “The ‘Modern’ Theory of Natural Law,” in The Languages ofPolitical Theory in Early-Modern Europe, ed. Anthony Pagden (Cambridge:Cambridge University Press, 1987), 99–122; Ian Hunter, Rival Enlightenments: Civiland Metaphysical Philosophy in Early Modern Germany (Cambridge: CambridgeUniversity Press, 2001); and Knud Haakonssen, “The Significance of ProtestantNatural Law,” in Reading Autonomy, eds. Natalie Brender and Larry Krasnoff(Cambridge: Cambridge University Press, 2002).

[9.]See Conal Condren, “Natura naturans: Natural Law and the Sovereign in theWritings of Thomas Hobbes,” in Hunter and Saunders, Natural Law and CivilSovereignty.



[10.]For a treatment of Pufendorf as Hobbes’s “disciple,” see Fiammetta Palladini,Samuel Pufendorf discepolo di Hobbes: Per una reinterpretazione delgiusnaturalismo moderno (Bologna: Il Mulino, 1990). For a different view, see KariSaastamoinen, The Morality of Fallen Man: Samuel Pufendorf on Natural Law(Helsinki: Finnish Historical Society, 1995).

[11.]Thomas Behme, “Pufendorf’s Doctrine of Sovereignty and Its Natural LawFoundations,” in Hunter and Saunders, Natural Law and Civil Sovereignty.

[12.]Sieglinde C. Othmer, Berlin und die Verbreitung des Naturrechts in Europa.Kultur- und sozialgeschichtliche Studien zu Jean Barbeyracs Pufendorf-Übersetzungund eine Analyse seiner Leserschaft (Berlin: Walter de Gruyter, 1970).

[13.]Jean Barbeyrac, trans., Le droit de la nature et des gens, ou système général desprincipes les plus importans de la morale, de la jurisprudence, et de la politique(Amsterdam, 1706).

[14.]Barbeyrac, Les devoirs.

[15.]These appendices appeared first in the fourth edition of Barbeyrac’s translation:Les devoirs de l’homme et du citoien, tels qu’ils lui sont prescrits par la loi naturelle,quatrième édition, augmentée d’un grand nombre de notes du traducteur, de ses deuxdiscours sur la permission et le bénéfice des loix, et du jugement de M. de Leibniz surcet ouvrage, avec des reflexions du traducteur (Amsterdam: Pierre de Coup, 1718).

[16.]See T.= J. Hochstrasser, “Conscience and Reason: The Natural Law Theory ofJean Barbeyrac,” Historical Journal 36 (1993): 289–308; and “The Claims ofConscience: Natural Law Theory, Obligation, and Resistance in the HuguenotDiaspora,” in New Essays on the Political Thought of the Huguenots of the Refuge,ed. John Christian Laursen (Leiden: E.= J. Brill, 1995), 15–51.

[17.]De officio hominis et civis, juxta legem naturalem, libri duo. Supplementis &observationibus in academicae juventutis usum auxit & illustravit GerschomusCarmichael (Edinburgh: 1718; 2d ed., 1724). For Carmichael’s editorial material, seealso Natural Rights on the Threshold of the Scottish Enlightenment: The Writings ofGershom Carmichael, eds. James Moore and Michael Silverthorne, trans. MichaelSilverthorne (Indianapolis, Ind: Liberty Fund, 2001).

[18.][Richard Allestree], The Whole Duty of Man (London: John Baskett, 1726 [1sted. 1658]).

[19.]David Burchell, “On Office: Pre-modern Ethics and the Modern MoralImagination,” unpublished research monograph, 2001.

[20.]For the general context, see Mark Goldie, “Priestcraft and the Birth ofWhiggism,” in Political Discourse in Early Modern Britain, eds. Nicholas Phillipsonand Quentin Skinner (Cambridge: Cambridge University Press, 1993), 209–31.



[21.]Michael J. Silverthorne, “Civil Society and State, Law and Rights: Some LatinTerms and Their Translation in the Natural Jurisprudence Tradition,” in ActaConventus Neo-Latini Torontonensis: Proceedings of the Seventh InternationalCongress of Neo-Latin Studies, eds. Alexander Dalzell, Charles Fantazzi, and RichardJ. Schoeck (New York: Medieval & Renaissance Texts & Studies, 1991), 677–88.

[22.]Quentin Skinner, “The State,” in Political Innovation and Conceptual Change,eds. T. Ball, J. Farr, and R.= L. Hanson (Cambridge: Cambridge University Press,1989), 90–131.

[23.]See notes for details.

[1.]Never does nature say one thing, and wisdom another.

[1.]There were also Danish, Russian, and Spanish translations of the De officio. Therewere Latin editions in Sweden but none in the national tongue.

[2.]This and the following paragraph were added to Tooke’s foreword by theanonymous editors of the 1716/35 edition, referred to hereafter as “the editors.” Herethey indicate the changes to Tooke’s first edition of 1691, albeit none too accurately.

[3.]This translation, which was undertaken by Immanuel Weber, appeared in 1691under the title Einleitung zur Sitten- und Statslehre, oder, Kurze Vorstellung derSchuldigen Gebühr aller Menschen, und insonderbereit der Bürgerlichen Stats-Verwandten, nach Anleitung derer Natürlichen Rechte (Introduction to Moral andPolitical Philosophy, or, Short Presentation of the Bounden Duty of All Men,Especially the Civil State-Related, in Accordance with the Teachings of NaturalLaws).

[4.]This probably refers to the Latin edition published at Giessen in 1702, for whichWeber supplied the notes.

[5.]In fact, these borrowings from Pufendorf’s Law of Nature and Nations areconfined to a single chapter of Weber’s version of the De officio, Chapter V of BookI, “On the Duties of Man to Himself.” See note 19, Book I, below.

[6.]Which of Pufendorf’s expressions the English editors found intricate or esoteric isnot immediately apparent. Only Pufendorf’s political vocabulary—state (civitas),sovereignty (summum imperium), citizen (civis)—seems to have caused problems forTooke. This was less a matter of intricacy, however, than of the difficulties ofrendering Pufendorf’s “statist” lexicon in terms suited to the English setting and Whigsensibilities. This set of issues is commented on in subsequent notes.

[7.]The editors in fact added only a few such examples, which they indicate by squarebrackets.

[8.]With the exception of the reconstructed I.v, whose ultimate source is Weber, thesereorderings derive from Barbeyrac’s edition. Each is identified in the relevant notesbelow.



[9.]These added references to Pufendorf’s larger work, which the editors haveborrowed from Barbeyrac’s first French edition of the De officio, occur beneath themarginal subheadings, where they are cited as L. N. N. (Law of Nature and Nations).

[10.]The references to Grotius’s Law of War and Peace, also added by the editors ofthe 1716/35 edition, occur as footnotes.

[11.]These references to Pufendorf’s polemical defenses of his position were added bythe editors and also occur as footnotes. All such footnotes—that is, those notexplicitly assigned to Barbeyrac by our notes—should be regarded as additions by theeditors of the 1716/35 edition.

[12.]These critical footnotes, marked typographically by asterisks, daggers, andsimilar symbols, which first appeared in the fourth edition of 1716, were taken fromthe first edition of Barbeyrac’s French translation of the De officio: Les Devoirs deL’Homme et du Citoien, tels qu’ils lui sont prescrits par la Loi Naturelle, published inAmsterdam in 1707. They represent a good selection of Barbeyrac’s original notes,fifty-two of a total of some eighty-nine. This seems small, however, in comparisonwith later editions of Barbeyrac’s translation, in which the notes grew exponentiallyinto a running commentary on Pufendorf’s text. All of the footnotes borrowed fromBarbeyrac are identified in square brackets after the footnote and cite Barbeyrac’snote markers and page numbers from his first edition. Further, all of the importantones are discussed in terms of the manner in which Barbeyrac (and the Englisheditors) sought to inflect Pufendorf’s text for a new readership.

[13.]There is no evidence that this was carried out. The editors derive theirreorderings of Tooke’s text from Barbeyrac’s unauthorized revisions to Pufendorf’soriginal. All such changes are recorded in our numbered footnotes, includingBarbeyrac’s excision of certain passages for ideological reasons (see in particularnotes 2 and 8, in Book II, below).

[*]Ann. 1673, published in Suedish a Year after his large Work.[Barbeyrac’smarginal note (a), p. xix.]

[†]See Julius Rondinus praef. ad Eris. Scand. in Postscripto & Comment. ad Pullum.Ven. Lips. p. 46, 47. [Barbeyrac’s note III.1, p. xxiii (relocated).]

[2.]Tooke’s struggle with Pufendorf’s political vocabulary begins here, with hischoice of “City or Common-wealth” to translate civitas, which Pufendorf uses tosignify the state. The republican terms “city,” “commonwealth,” and “civil society”were commonly used to translate civitas during the sixteenth and seventeenthcenturies, even by Hobbes. Yet in the Introduction to his Leviathan (1651), Hobbesexplicitly introduces “state” as the modern equivalent for civitas, and this usage waswidespread in the second half of the century. Given its evident suitability forrendering Pufendorf’s nonrepublican conception of political authority, we mayconjecture that Tooke remained unhappy with the Hobbesian or absolutistconnotations of the term. In the event, he translates civitas using “state” on thirty-twooccasions, otherwise having recourse to a battery of circumlocutions including



“community” (59), “civil society” (23), “kingdom” (21), “nation” (14), and “society”(11), in addition to “city” (3) and “commonwealth” (20).

[3.]Tooke’s translation of Pufendorf’s theologia moralis or “moral theology.”

[4.]This the first sign that the editors of the 1716/35 edition were drawing onBarbeyrac’s translation to make subtle ideological revisions to Tooke’s. In Tooke’sfirst edition this sentence reads: “Of Civil Laws and Constitutions, the supremeReason is the Will of the Law-giver,” which is much closer to Pufendorf’s originalformulation in terms of what the legislator lays down (quia legislator ita constituit).In borrowing the phrase “legislative power” from Barbeyrac’s puissance législative,the editors make room for a parliamentary legislator.

[*]See L. N. N. l. II. c. 1. §8. c. 11. §2. Dissert. Acad. X. de statu Nat. §3. Eris. Scand.praef. Rondini Apol. advers. Indicem Novitat. §11, 12, 16. p. 20. seq. Specim.Controv. c. 3. §1, 3. & p. 20. c. 4. §16. p. 217, 258. sequ. Spicileg. Controv. c. 2. §1.13, 15. c. 3. §1. p. 357, 380. sequ. Rondin. Dissert. Epist. §1. p. 396. & Postscript. adSeckendorff. Puffendorf. Epist. ad Amic. Erid. p. 133. Comment. super Pullo Lips.Ven. p. 11, 16, 36, 44, 46, 52, 54.

[*]

Est Ardelionum quaedam Romae Natio,Trepide concursans, occupata in otio,Gratis anhelans, multa agendo nihil agens,Sibi molesta & aliis odiosissima.

Phaed. Lib. II. Fab. 5. [Barbeyrac’s note III.2, p. xxv.]

[†]It is true that Revelation has, beyond all doubt, asserted and given full Evidence ofthe Immortality of the Soul, and of the Certainty of Rewards and Punishments in theWorld to come: It is also certain, that the fundamental and distinguishing Principle ofMoral Theology, is the Hope of a blessed Eternity, promised to those who direct theirLives by Gospel Precepts. However, we must not therefore take from the Law ofNature all Regard to a future Life: For we may, by the meer Light of Reason, proceedso far at least, as to discover, that it’s not improbable, that God will punish in anotherWorld, those who have wilfully violated the Law of Nature, and have thereuponsuffered neither Human nor Divine Punishment in this Life; nay farther, that thisOpinion is much more probable than the contrary one to it. If this be so, it is agreeableto the Laws of Prudence and good Sense, that no Man, for the sake of a short andtransient Satisfaction, should expose himself even to a Possibility of being eternallymiserable: And thus far the Fear of being punished in the Life to come; may veryjustly be said to appertain to the Sanction of the Law of Nature. See L. N. N. lib. 2. c.3. §21. [This footnote (Barbeyrac’s, VI.1, p. xxvii) is the first advocating an importantdeparture from Pufendorf’s conception of natural law. By insisting that the likelihoodof divine punishment is open to reason and hence forms a part of natural law,Barbeyrac seeks to evade the restriction of natural law to “this life,” therebyundermining Pufendorf’s attempt to reconstruct natural law as a secular civil ethics.



Their inclusion of this note suggests that the English editors were also seeking tomaintain some sort of continuity between natural law and moral theology, civil andreligious duties.]

[*]Eris. Scandic. Specim. Controvers. c. 4. §19. p. 262. Spicileg. c. 1. §20. p. 355, &c.c. 11. §10. p. 371. Epist. ad Amicos. p. 133.

[*]Quam angusta innocentia est ad legem bonum esse? Quanto latiùs Officiorumpatet quam Juris Regula? Quàm multa Pietas, Humanitas, Liberalitas, Justitia, Fidesexigunt, quae omnia extra Publicas Tabulas sunt? Seneca de Ira, lib. 2. cap. 27.[Barbeyrac’s note 1, p. xxix.]

[†]Dissert. Acad. IV. de Systemat Civit. §7. & IX. de Concord, verae polit, cum Relig.Christ.

[‡]Specim. Controv. c. 1. §2.

[*]Praefat. p. 3. ad Jur. Nat. & Gent. Postscript. Rondini ad Seckendorf. Apol. §28.Specim. Controv. c. 4. §12, 17. Spicileg. c. 11. §1, 5, 6, 8, 14. Comment. ad Ven. Lips.p. 37.

[*]Vetustissimi Mortalium, nullâ adhuc pravâ libidine, sine probro, et scelere, eoquesine poena aut coercitionibus agebant; & ubi nihil contra morem cuperent, nihil permetum vetabantur. Tacit. Annal. Lib. III. Cap. XXVI. [Barbeyrac’s note VIII.1, p.xxxiv.]

[*]Eris. Scandic. Specim. Contr. l. 4. §20. p. 263.

[†]Spicileg. c. 1. §17.

[*]Diog. Laert. lib. 1. §59. Edit. Amstelod. [Barbeyrac’s marginal note (a), p. xxxviii.]

[†]Franc, Lopez de Gomara, Hist. General. Ind. Occid. Cap. 207. [Barbeyrac’smarginal note (b), p. xxxviii.]

[*]Rather Zeuxis, Ael. V. H. II. 2. Plut. de. Adulat. [Barbeyrac’s marginal note (a), p.xl (abbreviated).]

[*]The ancient Stoicks call’d Actions by the Greek Word καθηκον, and by the LatinOFFICIUM, and in English we use the Word OFFICE in the same Sense, when wesay, Friendly Offices, &c. but then the Definition hereof given by the Philosophers, istoo loose and general, since thereby they understood nothing but an Actionconformable to Reason. As may appear from a Passage of Cicero (de Fin. Bon. &Mal. L. 3. c. 17.) Quod autem ratione actum sit, id OFFICIUM appellamus. See alsoDe Offic. l. 1. c. 3. & Diogenes Laertius Lib. VII. Sect. 107, 108. [This slightlymodified version of Barbeyrac’s note I.1, p. 1 is intended to clarify Pufendorf’sconception of duty (officium), as action commanded by a superior, by contrasting itwith the philosopher’s conception, as action in accordance with right reason.]



[*]This is evident from the Example of the Heathen, and the Holy Scriptures areexpress in this Point; for thus they say: For when the Gentiles, which have not theLaw (Written or Revealed, as was that of Moses) do by NATURE the things containedin the Law, these having not the Law are a Law unto themselves: Which shew theWork of the Law written in their Hearts, their Conscience also bearing Witness, andtheir Thoughts the mean while accusing, or else excusing one another; (that is, whenthey do ill, they condemn themselves in their own Conscience, and on the contrary,when they do well, they have in themselves an inward Approbation and Satisfaction:From whence it plainly appears they have Ideas of Good and Evil.) Rom. ii. 14, 15.[In this note (IV.1, p. 3) Barbeyrac seeks to close the gap between Pufendorf’sconception of understanding (as the capacity to deduce the rules of civil tranquillity)and the Calvinist conception of conscience (as the individual’s inner access to morallaws inscribed in the heart by God).]

[*]L. N. N. l. 1. c. 3. §3. Apol. §21. Eris. Scand. p. 37.

[†]A scrupulous Conscience, proceeding mostly from Weakness and Superstition, isonly to be help’d by better Information. Here our Author’s Definition of Consciencemay be noted, that it is an Act of the Mind judging of what a Man has omitted ordone, according to some Rule to which he was rightly oblig’d. Nay, in strict Sense, toact against Conscience is no other than wittingly and willingly to do Evil. [Added bythe English editors, this note expounds Pufendorf’s conception of conscience ratherthan Barbeyrac’s. In treating conscience as judgment in accordance with an imposedrule—rather than as individual insight into God’s laws or intentions—Pufendorf wascounteracting doctrines (some of them Calvinist) that placed conscience above civilduty.]

[*]Such Circumstances are the Manner, the Intention, the Instrument, the Quality ofthe Thing done, &c. Thus, for Example, A Man may happen to kill another withoutany Thought of doing so; he may mistake him for an Enemy, may give him Poisonwhen he thinks what he gives him is wholsom Liquor. Tho’ we may believe Actionsso circumstantiated to be innocent, yet no Man can innocently assert, that Murder orPoisoning are lawful. [Barbeyrac’s note VII.1, p. 6.]

[1]This subsection is an example of the editors’ attempting to improve on Tooke’sversion, using Barbeyrac as their model to change the order of exposition, and thenadding their own biblical examples to clarify the different forms of morally significantignorance. In general, Tooke’s original is clearer.

[*]There is no other but this last sort of Ignorance that is really involuntary andinvincible, and capable entirely to excuse Men in doing any prejudicial Acts; for it isMen’s own Faults that they fall into any of the forementioned sorts of Ignorance.[Barbeyrac’s note VIII.2, p. 8.]

[*]The Judgment of the Divines. [One of Tooke’s own (rare) marginal notes from thefirst edition of 1691.]

[†]Hugo Grotius de Jure Belli & Pacis. Lib. 11. c. 20. §18.



[*]Apolog. Sect. 22. in Eris. Scandic. p. 39.

[*]The Effect of these sort of Maladies, and of Drunkenness is not, to speak properly,a giving to the Will a bent and inclination to this or that thing, so much as an entiredestroying the Principle of Human Actions; because Men under these Circumstancesknow not any thing of what they do. [Barbeyrac’s note XV.1, p. 14.]

[*]L. N. N. l. 1. c. 5. §3. Spicileg. Jur. Nat. §12. in Eris. Scandic. Page 343.

[*]The Words of our Blessed Saviour, Luc. xii. 48. [Barbeyrac’s note XXII.3, p. 22.]

[†]Our Author, who frequently makes use of Plautus, does without doubt in this placeallude to the Mostellaria, Act. 3. Sc. 2 v. 104, 105.

Simul flare sorberéque haud facileEst: ego hic esse & illîc simul haud potui.[Barbeyrac’s note 2, p. 22.]

[‡]The Author seems here to give too great an Allowance to this second sort ofCompulsion. It must indeed be owned, that it greatly lessens the Offence, especially inCourts of Human Judicature; but then it frees us not from Imputation intirely in theSight of God. The Example our Author gives of the Sword or Ax reaches not theCase, for they are Instruments meerly passive: But on the other hand, a Person who isno other ways forced but by the Menaces of some great Mischief, without anyphysical or irresistible Violence, acts with some degree of Willingness, and gives asort of a Concurrence to an Action which he plainly knows to be ill, when he is thusconstrained to do it. There is but one Case wherein, with a safe Conscience, we mayobey the injurious Orders of a Superior, in order to avoid the Mischiefs he menaces uswith in case of a Refusal; and that is, when the Person, on whom the Mischief is tofall by our Compliance with the injurious Orders of a Superior, does himself consentthat we should avoid the Mischief threatned to us, by doing the Action commanded,altho’ it be injurious to him, and rather contents himself to suffer such Injury, than toexpose us to the Violence of the Person menacing: But this also must be understoodonly of such Cases as the Person has it in his Power to give Consent, namely, whenthe Injury he consents to suffer is the Violation only of such a Right as is in the powerof the suffering Person to quit; otherwise this Case holds not good; for should anyone, for example, consent that I should act the Command of another to kill him, suchconsent would not acquit me of the Guilt of Murder, should I by the Menaces of anyone be constrained to take away his Life. See L. N. N. lib. I. cap. V. §9. & lib. VIII.cap. I. §6. [This note (Barbeyrac’s XXIV.1, p. 23) continues his attempt to blurPufendorf’s strict separation of the civil and religious judgment. By insisting againstPufendorf that someone who commits an evil act under coercive threats may still beblameworthy in the sight of God, Barbeyrac refuses to allow civil obligation to cancelout the individual’s conscience and moral responsibility.]

[*]That is, when, for example, a Man advises another to steal this or that thing,shewing him at the same time the properest Manner to take it without discovery, thefavourablest Time of conveying himself into the House where it is, the Place where



the thing is reposited, the best Way of getting off with it, and the like Particulars; butthis is not meant of simply advising any one in general terms to steal for his Supportrather than starve. L. N. N. lib. I. cap. V. §14. [Barbeyrac’s XXVII.1, p. 26.]

[†]That is, provided this Advice, these Encouragements and Commendationscontribute to make him do the criminal Act; for in such case only the Imputation lies;otherwise the Person thus counselling and encouraging is only guilty of the illIntention which he had. Lib. III. cap. I. §4. [Barbeyrac’s XXVII.2, p. 27.]

[*]On this Head consult H. Grotius de Jure Belli & Pacis, l. 1. c. 1. §9.

[2.]Pufendorf’s construction of law in terms of the commands of a superior is aimedsquarely at the Thomistic- scholastic conception of law as the rule of an(independently) moral action or nature.

[3.]The phrases “moral Bond” and “Moral Bridle” are innovations by the Englisheditors. Pufendorf’s original phrase is vinculum juris, which Tooke translatedcorrectly as “rightful Bond” and Barbeyrac as lien de Droit. Here the editors seek toadd a moral- philosophical inflection to Pufendorf’s juristic construction ofobligation.

[4.]Pufendorf’s construction of the superior—hence of obligation—in terms of thecombination of coercive power and just reasons is one of the most crucial andcontroversial passages in the Whole Duty. This is largely because moral theologiansand moral philosophers, including Barbeyrac, require their separation, insisting on thepriority of the just reasons, understood as moral justifications for the exercise ofpolitical authority. Pufendorf, however, treats the power of the superior and therationale (“just reasons”) for accepting one as conjoint conditions for the creation ofobligation. (See note 6 on p. 45). This is one of the central points at issue inBarbeyrac’s commentary on Leibniz’s attack on Pufendorf. See Barbeyrac’sJudgment of an Anonymous Writer in the appendix to this volume.

[5]The following formulation—“the other proceeds … is founded”—in which thereasons for complying with the superior’s will are characterized as founding hisauthority, is not Pufendorf’s, having been borrowed from Barbeyrac by the editors.Tooke’s original rendering—“for the sake of those other Reasons, which even withoutFear, ought to allure any man to compliance with his [the superior’s] Will”—isaccurate. Barbeyrac’s modification is an attempt to insert the notion of a rationalmoral grounding of political authority into a text from which it has been deliberatelyexcluded.

[6]This division of the “just reasons” for political subjection into two groups—thefirst concerning the relations of vulnerability and protection linking subject andsuperior, the second with the subject’s voluntary consent to subjection—is another ofBarbeyrac’s innovations carried across by the editors of the 1716/35 edition. Absentthis division, Pufendorf’s original (and Tooke’s translation) treats consent not as aseparate condition for legitimate subjection but simply as the subject’s agreement to



exchange obedience for security. The exchange of obedience for security constitutesthe “just reasons” for legitimate political authority.

[7]This and the sentences immediately following contain characteristic instances ofthe manner in which Tooke adapts Pufendorf’s political lexicon to its Englishdissemination. Tooke’s “Man in Civil Society” translates Pufendorf’s civis, or citizen,translated by Barbeyrac as citoien and by Weber as Bürger. Similarly, in the nextsentence but one, Tooke’s “Laws of a Man’s Country or City” represents hisdomestication of Pufendorf’s leges civiles, or civil laws. Finally, in the next sentence,Tooke’s characterization of the author of the law as “he, who hath the SupremeAuthority in the Community” is his rendering of Pufendorf’s quem summum incivitate est imperium, “he who holds sovereignty in the state.” These and similarcircumlocutions, which are used throughout Tooke’s translation, represent histransposition of Pufendorf’s statist political vocabulary—derived from Roman lawand German political jurisprudence (Staatsrecht)—into a cultural register dominatedby English common law and sovereignty conceived of as the “king in parliament.”

[*]See Grotius de Jure Belli & Pacis, L. 2. c. 20. Sect. 21. &c.

[*]See Grotius de Jure Belli & Pacis, L. 2. c. 20. Sect. 26, 27.

[†]See Grotius de Jure Belli & Pacis, Lib. 3. cap. 4. §2.

[‡]The Points here spoken of mean the Quality, or the Intention of the Agent; theObject, the End pursued thereby, and other like Circumstances of the Action. Thus,though an Action may in every respect answer the Direction of the Law, it may benevertheless charged on the Doer as a bad Action, especially in the Sight of God, notonly when it was done upon an ill Principle with a vitious Intention, but also when itwas done through Ignorance, or on some other Motive different from what the Lawprescribes. I say it may be accounted a bad Action in the Sight of God; for theoutward Obedience of the Laws sufficiently answering the Ends of Civil Society,which is the Aim only of Politick Legislators, they never concern themselves with theIntention of the Agent, whether it be just or unjust, provided the External Act hasnothing in it but what is conformable to the Law. See L. N. N. L. I. Cap. VII. §3, 4 andLib. I. Cap. VIII. §2, 3. [In borrowing Barbeyrac’s note (XI.2, p. 36) the editors againmake use of his softening of Pufendorf’s strict separation of the civil and theologicaldomains. In observing that not all natural law will be enacted as civil law, Pufendorfaccepts that the civil law will permit actions contrary to morality. In keeping with hisdesire to maintain some continuity between civil and religious morality, however,Barbeyrac treats this state of affairs as lamentable, insisting that the perpetrators ofsuch actions remain guilty in the sight of God. This is a central theme of Barbeyrac’stwo discourses—the Discourse on What Is Permitted by the Laws and the Discourseon the Benefits Conferred by the Laws—which are reproduced in the appendix to thisvolume.]

[8]Here Pufendorf invokes the standard Roman law formula, from the Institutes ofJustinian, that Justitia est constans et perpetua voluntas jus suum cuique tribuere.



Like Hobbes, Pufendorf restricts this concept to the civil state, for only under civilauthority are men capable of adhering to contracts.

[*]Good Actions might have been more properly distinguished with respect to thethree Objects they may have; which are, G O D, our Neighbour, and our selves. (see§13. of the following Chapter.) Such good Actions, as have G O D for their Object,are comprehended under the general Name of P I E T Y. Such good Actions as havefor their Object other Men, are signify’d by the Name of J U S T I C E. And thosegood Actions which have only a direct respect to our selves, may be contain’d in theTerm Moderation, or T E M P E R A N C E. This Division of good Actions being themost Simple and Natural one, is also the most Ancient one. See L. N. N. Lib. II. Cap.III. §24. [Barbeyrac’s note (XIII.1, p. 38) is a response to Pufendorf’s discussion ofjustice as a relational virtue, which derives from Aristotle’s Nichomachean Ethics (V.4–5). Having already refused to accept that goodness can be equated with conformityto the law, Barbeyrac now provides it with an independent foundation, in the relationsto God, others, and myself. He thus seeks to outflank Pufendorf’s civil ethics, wherethese relations are subordinated to natural law understood as the rules of sociability.For more on this, see Barbeyrac’s two discourses in the appendix.]

[*]The Duties here meant, by such as could not have been extorted by Force or Law,are such as are not absolutely necessary for the Preservation of Mankind, and for theSupport of Human Society in general, although they serve to embellish it, and renderit more commodious. Such are the Duties of Compassion, Liberality, Beneficence,Gratitude, Hospitality, and in one word all that is contain’d under that comprehensiveName of Charity, or Humanity, as it is oppos’d to rigorous Justice properly so call’d,the Duties of which, generally speaking, have their Foundation in Agreement. I saygenerally speaking; for tho’ there be no Agreement made, we lie under anindispensible Obligation to do wrong to no one, to make good the Damage any onehas sustain’d by us, to look upon each other as Equals by Nature, &c. But here weought to observe, that in case of extream Necessity, the Imperfect Right that othershave to these Duties of Charity from us, becomes a Perfect Right; so that Men may byforce be obliged to the performance of these Duties at such a time, tho’ on all otherOccasions the Performance of them must be left to every Man’s Conscience andHonour. See L. N. N. lib. 1. cap. 7. §7. lib. 3. cap. 4. §6. [In this note (XIV.1, p. 38),Barbeyrac seeks to soften Pufendorf’s distinction between imperfect duties (duties ofconscience incapable of being compelled as strict right) and perfect duties(compellable duties grounded in contract and positive law). He argues that somemoral duties are also compellable, while others may become so under conditions ofextremity.]

[†]This Division is not compleat, because it comprehends no other Duties but whatMen are oblig’d to the performance of towards others, by virtue of an Engagemententer’d into to that purpose; but there are Duties that our Neighbour may in strictjustice demand at our hands, independently of all such Engagement or Agreement.See the preceeding Note. I should rather approve of Mr. Buddeus’s Division of thisParticular, or Strict Justice (Elem. Pract. Phil. par. II. Cap. II. §46) into Justice as itis exercised between Equals and Equals, and as it is exercised between Superiors andInferiors. The Former of these is subdivided into as many different Sorts as there are



Duties, which one Man may demand in strictness the performance of from every otherMan, consider’d as such, and one Citizen from every other Member of the sameBody. The Latter of these comprehends as many different Sorts as there are kinds ofSocieties wherein some command and others obey. [As in the preceding note, in thisone (XIV.2, p. 39) Barbeyrac attempts to forestall the clear tendency of Pufendorf’sdiscussion, namely, the identification of strict or particular justice with positive law.As always, Barbeyrac wishes to subordinate the positive institutions of law and stateto the higher moral necessities of conscience and universal justice, arguing that somemoral rights might be claimed as a matter of justice.]

[*]See Grotius de Jure Belli & Pacis, l. 1. c. 1. §8.

[*]See Grotius de Jure Belli & Pacis, Lib. I. Cap. 1. §10.

[*]L. N. N. l. II. c. 1. §8. c. 2. §2. Dissert. Acad. ult. p. 458. Eris. Scandic. in Apol. p.20. seq Specim. Controv. c. 3. p. 217. c. 4. §161. p. 258. Spicileg. Controv. c. 3. §1. p.379. Jul. Rondin. Dissert. Epist. §1. seq. p. 396, Comment. super invenusto Ven.Lipsiens. pull. p. 11, 16, 36, 44, 46, 52, 54.

[9.]I.e., sets them to harm each other.

[10.]In treating it not as man’s natural condition or destiny, but as something forwhich he must strive against his own propensity for mutual harm, Pufendorf’sconception of sociability differs from the Aristotelian- scholastic conception, and alsofrom Grotius’s. Natural law for Pufendorf is thus not the law realizing man’sessentially sociable nature, or telos, but consists of the rules through which manimposes sociability on himself, as the comportment needed for security.

[11.]Should be “the” fundamental law of nature.

[*]See Grotius de Jure Belli & Pacis in Prolegomenis passim. L. N. N. l. 2. c. 3. §14.seq. Element. Jurispr. universal. l. 2. observ 14. Eris. Scandic. Apol. p. 46, 75.Specim. Controvers. c. 4. p. 231. sequ. Spicileg. Jur. Nat. c. 1. §14. p. 348. seq. c. 2.§8. p. 366. c. 3. §13. p. 389. seq. Venet. Lipsiens. pull. p. 11. & passim.

[*]Grotius de Jure Belli & Pacis, Lib. 1. Cap. 1. §10.

[12]Pufendorf thus invokes God after the fact, in order to provide the rules ofsociability with the obligatory force of law. Yet he simultaneously denies that Goddirectly enforces natural law commands, thereby calling their obligatoriness intoquestion. This is the gap that will be filled by the civil sovereign, whose role is totransform natural law into enforceable civil law.

[13]The ensuing treatment of God as the author of natural law is limited and indirectin comparison with scholastic accounts. For Pufendorf, man comes to understandnatural law as commanded by God not by recovering a transcendent reason he shareswith God, but by observing what it takes to preserve a creature whose existence mustbe regarded as willed by its creator.



[*]L. N. N. lib 2. c. 3. §13. seq. Eris. Scandic. Apol. §24 p. 40. Epist. ad Amicos.

[*]But these Duties, as well as those which regard our selves, have another moreimmediate and direct Foundation, which makes part of the general Principles of theLaw of Nature. For it is not necessary that all those Duties, the Necessity andReasonableness of which may be collected from the Light of Reason only, should bededuced from this one Fundamental Maxim. It may more justly be said, that there arethree grand Principles of Natural Right, that is, RELIGION, which comprehends allthe Duties of Man towards God; the LOVE OF OUR SELVES, which contains allthose Duties which we are bound to do, with respect only and directly to our selves;and SOCIABILITY, from whence results all that is due from us to our Neighbour.These are fruitful Principles, which, tho’ they have a great Affinity and Respect toeach other, are yet very different at the bottom, and ought wisely to be considered andregarded, so that an equal and just Balance may, as much as possible, be preserv’dbetween them. See L. N. N. lib. 2. cap. 3. §15. [In selecting this note (Barbeyrac’sXIII.1, p. 53) the editors import one of Barbeyrac’s central disagreements withPufendorf. Pufendorf conceives of natural religion—that is, of the duties to Godknown through reason alone—as a subordinate part of natural law. He thus derives itsduties from the requirements of sociability and denies it any role in salvation, which isto be pursued through faith in revealed religion. Barbeyrac rejects this civilsubordination of natural religion, insisting that duties to God (and to one’s neighborand oneself ) should be treated as an independent principle of natural law alongsidethe principle of sociability. Once again, the editors use Barbeyrac to soften or evadePufendorf’s secularization of civil ethics.]

[*]See Mons. Le Clerc’s Pneumatologia, §3. and Mons. Budaeus’s Discourse, dePietate Philosophica, being the fourth Discourse in his Selecta Jura Naturae &Gentium. [Barbeyrac’s note (I.1, p. 54), where he indicates that these texts should beconsulted for “all of this.”]

[14.]The prime- mover argument—that, considering the whole chain of causes andeffects, there must be a first cause—was a standard nonrevealed demonstration ofGod’s existence, hence compatible with a natural law known through the light ofreason alone.

[*]See the Continuation of various Thoughts about Comets, &c. by Mr. Bayle.[(Barbeyrac’s note III.1, p. 57.) Like Bayle, Pufendorf was opposed to Stoic andDeistic treatments of God, in the pantheistic manner, as the world’s animatingprinciple. This formed part of Pufendorf’s rejection of natural theologies purporting tooffer metaphysical insight into God’s nature.]

[15.]This sentence summarizes Pufendorf’s almost entirely negative view ofmetaphysics and speculative (natural) theology. God is not an object of knowledgeand understanding but of faith and will. Leibniz’s metaphysical counterattack ispresented, and criticized in turn, in Barbeyrac’s Judgment of an Anonymous Writer inthe appendix.



[17.]Pufendorf’s denial that natural religion has any role to play in salvation—hisinsistence that the whole soteriological drama of sin, justification, and redemption isinaccessible to natural reason—demonstrates the non- transcendental, wholly civilcharacter of his natural religion.

[*]L. N. N. lib. 7. cap. 4. §8. Eris. Scand §6. p. 7. Epist. ad Schetzer, p. 84. Append. p.108. seq. Spicileg. Controv. §16. p. 350. Exam. Doctrin. §2. quaest. 316. Discuss.Calumn. Beckmann. p. 169.

[18.]The theme of religion as the cement of society (societatis vinculum) was astandard one capable of several constructions. Unlike the scholastics (and Barbeyracto a degree), Pufendorf refused to derive human society from man’s community withGod, deriving it instead from the need for peace and the cultivation of sociability. Inwhat follows, Pufendorf thus treats conscience and the fear of God not as thefoundation of natural law, but as a psychological factor useful for securing adherenceto it.

[†]———.

Cogi qui potest, nescit mori.Seneca Hercul. fur. ver. 425. [Barbeyrac’s note 2, p. 68.]

[*]———.

Pone seram, cohibe, sed quis custodiet ipsos Custodes?Juv. Sat. VI. ver. 346, 347. [Barbeyrac’s note 3, p. 68.]

[19.]Despite the English editors’ publicity claim to have made many useful additionsto Pufendorf’s text, the only substantial ones are to be found in this chapter. Theadded material begins with the second paragraph of section II and continues throughsections III–IX, which consist of material on the care of the self taken fromPufendorf’s Law of Nature and Nations, II.iv. The ultimate source of thisreconstruction is Immanuel Weber, who claims to have introduced the interpolationswith Pufendorf’s approval, when undertaking the first German translation in 1691.Tooke’s translation, which appeared in the same year, did not borrow them.Barbeyrac’s first French edition of 1707 did, however, and it is from here that theeditors of the 1716/35 English edition borrowed their reconstruction. Thus theirwording of the added paragraphs is clearly an English translation of Barbeyrac’sFrench.

[*]The Duties of every Man, which directly and solely respect himself, have theirimmediate Foundation in that LOVE which every Man by Nature hath OF HIMSELF;which was before laid down as one of the grand Principles of Natural Right, andwhich not only obliges a Man to preserve himself, as far as possibly he can, withoutprejudice to the Laws of Religion or Sociality; but also to put himself into the best



Condition he can, and to obtain all the Happiness of which he is innocently capable.See L. N. N. Lib. II. Cap. III. §15. [Barbeyrac’s note (I.1, p. 71) in fact refers to the“three great principles of natural right”—love of oneself, of God, and ofsociety—continuing his attempt to evade Pufendorf’s subordination of these to theneed for security and the cultivation of sociability.]

[20.]The interpolated sections begin here.

[21.]The following duties related to the care of the soul, taken from LNN, II.iv.4–5,represent a characteristically Lutheran rejection of “fatalistic” philosophicalrationalism and “ritualistic” Catholicism.

[22.]Despite Pufendorf’s objections to Stoic fatalism, the advice on care of the self insections IV–VIII contains a compendium of neo- Stoic rules for cultivating the selfand restraining the passions and desires in accordance with the limited ends ofpersonal and civil tranquillity.

[23.]This marks the end of the sections on the care of the self added by Weber andsubsequently copied by Barbeyrac and thence the editors of the 1716/35 edition. Thefollowing section, X, on the care of the body, was section III in Pufendorf’s originalLatin text and in Tooke’s first English edition.

[*]See Grotius de Jure Belli & Pacis, Lib. I. & Chap. 2. Lib. II. c. 1. §3. Et seq.

[†]Grotius de Jure Belli & Pacis, Lib. 1. cap. 1.

[24.]Here and elsewhere Tooke uses “obnoxious” in the early modern (Latin) sense of“subject to.” The distinction he draws is thus between self- defense where there is noprevailing law or civil authority and self- defense where these conditions prevail.

[25.]Hellish rakes.

[26.]In Pufendorf’s original and Tooke’s first English edition a further paragraphbegins here. Barbeyrac moved this to the bottom of section XVII, and the Englisheditors show their fidelity to Barbeyrac’s text by altering Tooke’s versionaccordingly.

[*]See Grotius de Jure Belli & Pacis, Lib. 2. cap. 1. §17, &c. and c. 22. §5.

[27.]The following paragraph originally stood as the final paragraph of section XV(i.e., section VIII in Pufendorf’s original). It is not clear why Barbeyrac moved it.

[28.]Here and elsewhere in the discussion of self- defense, Tooke again opts for“community” in place of Pufendorf’s “state” (civitas).

[*]Grotius de Jure Belli & Pacis, Lib. 2. Cap. 1. §5.

[29.]The opening word is incongruous because, far from continuing the thought of thepreceding section, this one contradicts it, indicating circumstances in which



individuals may defend themselves regardless of the civil magistrate. In fact thissection (XIX) is not in its original location. It was originally Pufendorf’s section X,which means that it should be located between sections XV and XVI in Barbeyrac’saugmented version of Chapter V. In relocating this section Barbeyrac evidentlyintended it to undermine Pufendorf’s transfer of the right of self- defense to the civilmagistrate. That this was Barbeyrac’s intent is clear from the long note (XIX.1, p. 99)that he added near the end of this section in his translation, the burden of which is tojustify a subject’s right of defence against the unjust aggression of the civil magistratehimself. In choosing not to include this incendiary note, the editors largely defeatedthe purpose of Barbeyrac’s rearrangement of Pufendorf’s text.

[*]See Grotius de Jure Belli & Pacis, Lib. 2. Cap. 1. §15.

[30.]The “members” or limbs of the body.

[†]See Grotius de Jure Belli, & Pacis, Lib. 2. Cap. 1. §6.

[‡]Mr. Budaeus denies this (in the 2d Part of his Elements of Practical Philosophy,chap. 4. sect. 3.) and his Reason is, That there is no Proportion between the Life andthe Honour of any Person. But can any Violation be too great for a Woman to expectfrom a Man that is arriv’d to such a Pitch of Brutality? Besides, Honour is a Goodwhose Loss is not only irrecoverable, but which, among civiliz’d Nations, is placed inthe same Degree of Value with Life it self. After all, does not such an Act of Hostilityas this, give her a perfect Right to have recourse to Extremities against a Man, who tosatisfie his brutish Passion, irreparably stains the Honour and takes away the Libertyof an honest Woman? See Grotius de Jure Belli & Pacis, lib. 2. cap. 1. §7.[Barbeyrac’s XXII.1, p. 102.]

[*]The Author I just now quoted pretends in the same place, that no one canjustifiably kill a Thief, unless he attempts to steal from him so considerable a Part ofhis Substance, as that he could not live upon the Remainder. But this learned Authorhas said nothing to invalidate the Principles, and confute the Reasons alledged to thecontrary by our Author, in his large Work of The Law of Nature and Nations, ofwhich this is an Abridgment. See Lib. 2. Cap. 5. §16. [Barbeyrac’s XXIII.1, p. 102.]

[*]See Grotius de Jure Belli & Pacis, lib. 2. cap. 2. §6. lib. 3. cap. 17. §1, 2. seq.

[31.]The leges nauticae (lex mercatoria), or “law of the sea.”

[*]This Status adventitius is that State of Life we come into in consequence of someHuman Constitution; whether we enter into it at our Birth immediately, or whether ithappens after our Birth. Such are, for example, all those Conditions of Life where theDuties and Relations are reciprocal; such as a Parent and his Child, an Husband and aWife, a Master and a Servant, a Sovereign and his Subject. &c. [Barbeyrac’s I.1, p.111.]

[32.]The key to understanding Pufendorf’s division of duties to others lies in hisdoctrine that duties attach not to human beings as such—that is, not to a humansubstance or essence—but to a particular condition, state, or status that humans



occupy. This is defined at the beginning of Book II: “By ‘state’ [status] in general, wemean a condition in which men are understood to be set for the purpose of performinga certain class of actions” (Tully, ed., Duty, p. 115). All of the states of man and theirassociated duties are thus understood to be imposed or instituted, rather than to beexpressions of an essence. The common or universal duties to others attach to man’snatural status which was imposed by God. These are discussed in Chapters VI (toharm no one), VII (to treat others as equals or fellow humans), and VIII (to practicebenevolence). The artificial or adventitious statuses are those men have imposed onthemselves via pacts, which means that their duties are conditional on particularinstitutional arrangements. These states are those of linguistic communication,property ownership, marriage, parenthood, and, especially, the political state. Inbetween the natural and adventitious duties to others come the duties relating to pacts,discussed in Chapter IX of Book I.

[*]See Grotius de Jure Belli & Pacis, lib. 2. and the whole 17th Chapter.

[33.]Inflict loss.

[34.]Here Tooke’s “social Duty” translates Pufendorf’s socialitas, or “sociability.”

[*]See Grotius de Jure Belli & Pacis, lib. 3. c. 1. §4.

[†]See Grotius de Jure Belli & Pacis, lib. 3. c. 1. §5.

[35.]For Pufendorf equality arises neither from a common ability to inflict harm(Hobbes) nor from the universal possession of a soul or rational faculties (thescholastics), but from the fact that all men are subject to the same duties of sociability.

[36.]Pufendorf’s Latin is communis juris, which Weber renders as Gemeinen Rechte,Barbeyrac as Droits commun à tous les Hommes, while Silverthorne opts for“common law.”

[37.]Originally jus, which might here be better translated as “right.”

[*]Inscribed Posts set up in Highways to direct Travellers.

[†]See Grotius de Jure Belli & Pacis, lib. 2. cap. 2. §11, 12. seq.

[‡]Grotius de Jure Belli & Pacis, Lib. 2. Cap. 5. §10.

[*]See Grotius de Jure Belli & Pacis, Lib. 2. Cap. 20. §20.

[38.]Pufendorf’s term is pacts (pacta), or agreements. Duties in relation to pacts aretransitional between the natural and adventitious duties because it is through pacts thatmen institute the statuses to which these latter duties attach.

[†]Compare herewith the whole Eleventh Chapter of the Second Book of Grotius deJure, &c.



[*]See Grotius de Jure Belli & Pacis, Lib. 1. cap. 1. §4. seqq.

[*]See Grotius de Jure Belli & Pacis, Lib. II. Cap. 4. §4. Lib. III. c. 1. §8. c. 24. §1, 2.

[*]Provided this Error concerns something essential to the Bargain made; that is tosay, that it does necessarily and naturally concern the Affair in hand, or respectsplainly the Intention of those who contract, notified sufficiently at such time as theContract was made: And on both Sides allowed as a Reason without which suchContract had never been made; otherwise, as the Errour had no Influence on theContract to be made, so can it not disannul it when made, whether it be executed ornot. An Example will make the meaning hereof plain. Suppose I imagin that I havelost my Horse and that I shall never recover him again; and buy another, whichotherwise I wouldn’t have done: If I happen afterwards, contrary to Expectation, tofind my own again, I can’t oblige the Person I bought the new one from to take itagain, altho’ at that time he shou’dn’t have sent me the Horse, or have receiv’d themoney agreed for: Unless when we bargain’d, I had expressly and formally made thisa Condition of annulling such Agreement: For without such formal Stipulation, theAgreement stands good against me, altho’ I might (in way of Discourse only)mention, that I would not have bought this Horse, had I not lost my other. See L. N. N.lib. 3. c. 6. §7. See also Grotius de Jure Belli &. Pacis, lib. 3. cap. 23. §4.[Barbeyrac’s XII.1, p. 147.]

[39.]Roughly, “before the cargo is unloaded.”

[*]See Grotius de Jure Belli & Pacis, Lib. 2. cap. 17. §17.

[*]There was no need to have recourse to this Duty of Restitution, thereby to shew theInvalidity of such Contracts. For the want of Liberty in the Person promising, and thewant of Capacity in the Person obtaining by force the Promise, of creating to himselfthereby any Right to the Thing promised, are sufficient to shew the plain Nullity ofthe Agreement thus obtained. [Barbeyrac’s XV.1, p. 152.]

[*]This determination seems not altogether just, because he who had parted with hisGoods, had parted with them by an act invalid and of no effect. See L. N. N. l. 3. c. 7.§9. [Barbeyrac’s XVIII.1, p. 155.]

[40.]In Pufendorf’s Latin the word is sermo, meaning “conversation” or “discourse,”which Barbeyrac translates as parole and Silverthorne as “language.”

[*]See Grotius de Jure Belli, &c. lib. 3. cap. 1. §9. seqq.

[41.]This is Tooke’s English euphemism for Pufendorf’s arcana reip[ublicae],appropriately translated by Barbeyrac as secrets de l’Etat (secrets of state).

[*]Compare herewith the whole 13th Chapter of the 2d Book of Grotius de Jure, &c.

[*]Grotius de Jure Belli & Pacis, Lib. 3. cap. 19. §5.



[*]These are call’d Obligatory or Promissory Oaths, (Juramenta Promissoria:) theother Assertory or Affirmative Oaths, (Assertoria.) [Barbeyrac’s X.1, p. 172.]

[42.]Meaning not just animals but created things in general.

[*]See Grotius de Jure Belli & Pacis, lib. 2. cap. 2. §2. seqq.

[†]There was no need of any Convention, either exprest or tacit for this purpose. TheRight of the first Occupant is necessarily concluded to be conformable to his Intentionwho bestows any Thing in common to many, provided, that in possessing one’s self ofthat which no one has a particular Right to, we content our selves with a modestProportion, not engrossing the Whole, but leaving what is sufficient for the Occasionsand Use of others. See L. N. N. l. 4. c. 4. §4. [Barbeyrac’s note (II.1, p. 174) dissentsfrom Pufendorf’s treatment of all property rights as adventitious or conditional on“social” contracts. Barbeyrac views the property right of the first occupant as a naturaland unconditional expression of his liberty. Pufendorf rejects the notion of naturalrights, which he regards as a mortgage on sovereignty, treating rights instead ascapacities arising from instituted offices and obligations.]

[*]See Grotius de Jure Belli & Pacis, lib. 2. cap. 3. §1.

[43.]The preceding sentence provides a good example of the manner in whichTooke’s anglicization adapts Pufendorf’s statist jurisprudence to the image of acommunity governed by common law. In Pufendorf’s original it is the state (civitas)that may set limits to private ownership of property, which is done not through“Municipal laws” but at the direction of civil government (imperium civile) or as aresult of human agreements. Barbeyrac opts for sociétez civiles in which the limits areset by les Loix & par la volonté du Souverain or else by human conventions (p. 175).


[*]That whereon the first Occupant properly grounds his Right is, his giving openNotice, before any other, of his Design and Intention to preserve to his own Use thisor that Thing, which he has made himself the first Possessor of. If therefore he hasgiven any such fair and significant Notice of such his Intention; or if any others, whomight with him have a common Right to the Thing, shall freely and significantly setforth their Intention to depart from their Share, or Part of the Thing in favour of thisClaimant: He then comes to have the Original Property in the Thing, even before hemay have taken actual Possession of it. See L. N. N. l. 4. c. 6. [Barbeyrac’s VI.1, p.177.]

[†]See Grotius de Jure Belli, &c. L. II. c. 8. §2. seqq.

[‡]See Grotius de Jure Belli & Pacis, lib. 2. c. 8. §2. seq.

[*]See Grotius de Jure Belli & Pacis, Lib. 2, cap. 8.

[*]See Grotius de Jure Belli, & c. l. 2. c. 7. §3. seqq.



[*]See the whole 4th Chap. of the 2d Book of Grotius de Jure Belli, &c.

[†]See Grotius de Jure Belli, &c. lib. 2. cap. 6. §14.

[*]See Grotius de Jure Belli & Pacis, Book II. Ch. 10.

[45.]Fraud.


[†]Our Author here gives an imperfect Account of the proper and intrinsick Value ofThings. For Things capable of Valuation or Price, ought not only to be of some Useand Service to human Life, if not really, yet at least in the Opinion and Fancy of thosewho desire them; but also they ought to be of such a Nature, as not to be sufficient forthe Occasions and Demands of every one. The more any Thing is useful or scarce, inthis Sense, the greater is its intrinsick Price or Value. Nothing can be more useful tohuman Life than Water, yet it never bears any Price or Value, unless in such Places,or under such Circumstances, as make it not sufficient for every one’s Use, or difficultto be come at. [Barbeyrac’s III. 1, p. p. 193–94.]

[46.]In Pufendorf’s Latin this occurs in the “state” (civitas), not “Communities,” atthe direction of the “sovereign” (summus imperator) rather than the “ChiefMagistrates.”

[*]Grotius de Jure Belli & Pacis, lib. 2. cap. 12.

[*]There is, in Cases of this Nature, always a tacit Agreement, by Virtue of which, hethat borrows any Thing, ingages to restore the Thing lent, either in Kind, or to makeAmends by something of equal Value. See L. N. N. l. 5. c. 4. §6. [Barbeyrac’s IV.1, p.204.]

[47.]Provisional sale.

[48.]Forfeiture clause.

[49.]Buying a job lot.

[50.]Added by Tooke, “in Specie” is a now archaic legal term meaning the precise oractual form of something. The idea is that fungibles are items that may be repaid byany acceptable thing, rather than by something exactly the same as the loaned item.

[51.]That is, in a rateable or proportionate manner.

[*]A Wager shall be deem’d Good, though one of the Parties, who lay the Wager,knows perfectly the Truth of what he lays upon; unless he pretends himself ignorantor doubtful about it, in order to draw the other Party on to lay with him. See L. N. N. l.5. c. 9. §4. [Barbeyrac’s XIII.1, p. 215.]



[†]To make Games, and other Contracts, in which there is Hazard, lawful, it is notonly necessary that what both Parties playing run the Risk of losing, be equal; butalso, that the Danger of losing, and the Hope of gaining, on both Sides, bear a justProportion with the Thing plaid for. [Barbeyrac’s XIII.2, p. 215.]

[52.]This is Tooke’s rendering of Pufendorf’s rector civitatis, or “ruler of the state,”which Barbeyrac translates without embarrassment as Souverain.

[‡]The Insurer may demand more or less, according as there is more or less Hazardrun. But the Contract shall be null, if, at the Time of making thereof, the Insurerknew, that the Goods were safe arrived, or if the Owner of the Goods at that Time,knew that the Goods were lost. [Barbeyrac’s XIII.3, p. 216.]

[*]Grotius de Jure Belli & Pacis, l. 3. c. 20. §59.

[53.]Antichresis.


[54.]“In the human forum”; i.e., regardless of how things appear in the sight of God.

[*]Grotius de Jure Belli & Pacis, l. 2. c. 16.

[55.]The word “Contract” has been added, unnecessarily, by the English editors.Tooke’s wording was “the later part must be accounted to contradict that which wentbefore,” which, while not entirely perspicuous, is closer to Pufendorf’s originalposterius derogabit prioribus, “the later passage supersedes the earlier.”

[*]1. This Rule is not true, unless we suppose the Permission general, and theCommand particular. For it is certain, on the contrary, that a particular Permissiontakes Place of a general Command; the Permission in this last Case, being anException to the Command; as in the former Case, the Command restrains the Extentof the Permission. [Barbeyrac’s XIII.1, p. 233.]

[†]3. Here, likewise, it must be distinguish’d, whether these Laws forbidding orcommanding, be general or particular, as was laid down in the foregoing Note.[Barbeyrac’s XIII.2, p. 233.]

[*]6. This Rule is not true, unless in such Case, where all other Circumstances areexactly equal. For when two Covenants are directly opposite, the latter shall bebinding, whether the former be upon Oath, or not. But if the Two Covenants are notdirectly opposite, but only in some Respects different, the particular one shall bepreferr’d before the general one. [Barbeyrac’s XIII.3, p. 234.]

[†]7. These Two last Rules are comprehended in the Fifth, of which they are, as isobvious, only Consequences. [Barbeyrac’s XIII.4, p. 234.]

[1.]Tooke’s rendering of this crucial paragraph differs significantly from Pufendorf’soriginal. Pufendorf wrote not of duties attaching to a particular state ordained for man



by providence, but of those arising from the diverse statuses (ex diverso statu) manoccupies in social life. This definitively Pufendorfian viewpoint results from hisdoctrine that civil duties attach not to a human essence, or telos, but to statusesinstituted by man. Silverthorne’s rendering is broadly accurate: “We must next inquireinto the duties which fall to man to perform as a result of the different states in whichwe find him existing in social life. By ‘state’ [status] in general, we mean a conditionin which men are understood to be set for the purpose of performing a certain class ofactions. Each state also has its own distinctive laws [jura]” (Man & Citizen, p. 115).Only Silverthorne’s choice of “laws” for jura is questionable. Here perhaps Tooke’s“Rights and Offices” better captures the spirit of Pufendorf’s formulation.

[*]See Book I. Chap. III. §3. and the References made to it. [Barbeyrac’s marginalnote (a), p. 236.]

[2.]At this point, following Barbeyrac, the English editors have deleted Pufendorf’scharacterization of the life of man imagined in the absence of the mutual assistanceand industry through which he compensates for his natural weakness (imbecillitas). InTooke’s original edition the deleted passage runs “especially considering the presentcircumstances under which we at this time find Human Nature: Which wouldcertainly be much more miserable than that of a Beast, if we think with our selves,with what weakness man enters this World, so that he must immediately perish,except he be sustained by others, and how rude a Life he must lead, if he couldprocure nothing for himself, but by means of his own single Strength and Skill. But’tis plain, that we owe it all to the aid of other persons, that we are able to passthrough so many Infirmities from our Infancy to Manhood; that we enjoy infinitenumber of Conveniences; that we improve our Minds and Bodies to such a degree asto be useful to our selves and our Neighbour.” Barbeyrac had ideological misgivingsabout the bleakness of Pufendorf’s picture of the state of nature, believing that it givestoo great a role to the civil state in securing man’s happiness, hence too much powerto the civil sovereign.

[3.]In the early modern (Latin) sense of “subject to the authority of another.”

[4.]“The State of Man in a Community” is Tooke’s addition. Pufendorf’s sentenceends at “Civil State.”

[5.]Ovid’s myth of Cadmus, in which men spring from the ground where the dragon’steeth have been scattered.

[6.]In other words, even today states exist in a state of nature with regard to otherstates; for the civil condition, with its entire array of duties and rights, is internal tothe particular state.

[7.]That is, “states” (civitates). Barbeyrac’s formulation, according to which mengradually bring themselves under Gouvernement Civil (p. 239), is an improvisation onthe theme.



[8.]Barbeyrac deleted the following evocation of man’s miserable condition in thestate of nature (to the end of the paragraph), his second such deletion. (See note 2, p.167.) Further, to reinforce his unauthorized intervention, he added a footnote toPufendorf’s ensuing praise of the civil state, accusing him of exaggerating its virtues.In declining to follow Barbeyrac on this occasion, the English editors perhaps displaya degree of detachment from his more intense ideological engagement withPufendorf’s text.

[9.]In Pufendorf’s original text and in Tooke’s original translation, this importantsection, on the limited degree to which natural law binds man in the state of nature,was the final one in the chapter (sec. XI). In it, Pufendorf signals his relation toHobbes’s famous account of the state of nature as the “war of all against all.” AgainstHobbes, Pufendorf argues that even in the state of nature men should be bound by thenatural law of sociability. In denying that men can in fact live by this law in theabsence of civil authority, however, Pufendorf comes close to the Hobbesianviewpoint. If others are natural friends, they are unreliable ones, and in peace weshould be prepared for war. In reversing the order of Pufendorf’s final two sections,Barbeyrac prevents this being Pufendorf’s final word on the natural condition.

[*]See Grotius de Jure Belli & Pacis, lib. 2. cap. 23. §6, &c.

[*]Grotius de Jure Belli & Pacis, l. 2. c. 5. §9. &c.

[10.]I.e., the capacity to procreate.

[11.]I.e., the woman must promise to be sexually faithful.

[*]See Element. jurisprud. universal. l. 11. §7. Apol. §29. Eris Scandica. P. 48. & seq.p. 109.

[12.]The reference to “Subjects of such a Community” is Tooke’s innovation.Pufendorf refers only to those subject to the “civil laws” (leges civiles), which he ishere treating as supplementary to the natural laws dictating monogamous perpetualunions. We recall that by civil laws Pufendorf means the positive laws of a particularstate—here, the laws prescribing the form of marriage ceremonies—which shouldaccord with the end of natural law (social peace) but are not the same.

[13.]Children.

[*]Grotius de Jure Belli & Pacis, l. 2. c. 5. §1, &c.

[14.]Again, in Pufendorf this is “state” (civitas) and in Barbeyrac Sociétez Civiles.

[15.]Tooke’s “Members of a Community” evades the political force of Pufendorf’soriginal “who have submitted to the state” (qui in civitatem subierunt).

[16.]Again, Pufendorf’s term is “states” (civitates).

[*]Grotius de Jure Belli & Pacis. lib. 2. cap. 5. §27, &c.



[*]Grotius de Jure Belli & Pacis, lib. 3. cap. 14. §1, &c.

[18.]Originally: On the Impulsive Cause Constituting the State (civitas).

[19.]The infelicity of Tooke’s use of “community” for “state” becomes a particularproblem from here on, as Pufendorf begins to contrast “primitive” communities(societas)—family, household, clan—with the state (civitas), whose appearancemarks man’s transition from the natural to the civil condition.

[20.]Here begins Pufendorf’s important criticism of Aristotle’s conception of man asthe political animal (zoon politikon). In treating man as a “rational and social animal”whose virtues can only be realized in the polis, Aristotle and his scholastic followersnaturalize the state. For Pufendorf, however, the state is an artificial arrangement forpreventing man’s mutual predation, which means that it is civil discipline rather thannatural virtue that makes the good citizen.

[21.]Section IV following.

[22.]Section V below. Note Tooke’s interpolation of the republican formula “goodPatriots.” This blunts the edge of Pufendorf’s original “good citizen” (bonus civis),which he used as a polemical redescription of Aristotle’s “Political Creatures”(animal politicum).

[23.]Section VI below.

[24.]Originally “citizen” (civis).

[25.]“True Patriot” is again Tooke’s innovation, intended to add some republicanwarmth to Pufendorf, who writes not of patriots and community but of citizensdisciplined by the state.

[26.]I.e., is liable or subject.

[27.]Pufendorf uses “state” (civitas) throughout.

[28.]This is a central expression of Pufendorf’s secularization of political philosophy.By rejecting the Aristotelian conception of the state as nature’s vehicle for realizinghuman virtues, and by viewing it instead as a device for providing man with securityagainst man, Pufendorf detaches the state from all transcendent moral and religiousgoals.

[29.]Once again we take note of the fact that, despite wishing them to be viewed asdivine commands, Pufendorf denies natural laws all effective sanctions, until theadvent of the state.

[30.]The condition of achieving collective security is thus that men give up theirindividual right to determine the best means of achieving security, which henceforthbelongs to the sovereign or government of the state.



[31.]In other words, the individual or assembly that exercises sovereignty is regardedas “representing” the will of all only in the very limited sense that anything decidedby the sovereign power pertaining to security will be deemed the will of all.

[32.]Tooke’s reluctance to transmit Pufendorf’s view of the state as the supreme andautonomous political entity is clear when we compare this sentence withSilverthorne’s accurate rendering: “Only when they have achieved a union of willsand forces is a multitude of men brought to life as a corporate body stronger than anyother body, namely a state [civitas]” (Man & Citizen, p. 136).

[33.]“Constitution” is Tooke’s Whiggish innovation. In Pufendorf’s account,sovereignty is formed prior to the decree determining the form of government. Thisdecree may take the form of a constitution—by including certain basic laws limitingthe sovereign’s exercise of power—but it need not.

[34.]Originally: to become “fellow citizens” (concives).

[35.]Originally: is to remain outside the future “state” (civitas).

[36.]In viewing agency or personhood as an instituted office—rather than as flowingfrom a moral nature or essence—Pufendorf is able to treat the state as an independent“moral person,” bearing rights and duties irreducible to those of natural man.

[37.]This qualification is central to Pufendorf’s construction of the limits ofsovereignty and the state. Given that the sovereign is a persona instituted for the solepurpose of maintaining security and social peace—“those Affairs which only relate toGovernment”—the state has no rights or powers in areas lying outside this domain;for example, in the areas of family life and religion, unless particular incidents shouldthreaten social peace.

[38.]Here Tooke uses “Government” to translate Pufendorf’s phrase “sovereignpower” (summum imperium), which Barbeyrac renders as Souveraineté. Given thecentrality of the concept to Pufendorf’s construction of political authority, the fact thatTooke uses sovereignty (in its political sense) only twice in his entire translation is agood indication of the lexical and ideological changes made to Pufendorf’s absolutistvocabulary.

[*]That is to say, In such Matters as are neither commanded nor forbidden by anyDivine Law, whether it be Natural or Revealed. See Law of Nature and Nations. BookVIII. Chap. I. §2, &c. [In this note (II.1, p. 284) Barbeyrac seeks to restrict thesovereign’s legislative power to matters left indifferent by divine law, natural andpositive (adiaphora). Yet it is clear that Pufendorf intends that this power be broader,including in particular the right to determine which natural laws will be enacted aspositive civil laws and which will be left as “imperfect” (moral) duties. It should alsobe noted that Pufendorf writes not of the sovereign’s right to determine the lawful in“any Public Society,” but only in the state (quid in civitate pro licito).]

[39.]I.e., on his behalf.



[*]Apolog. §6. Eris Scandica. P. 7, &c. See also the References at Lib. I. c. 4. §9.

[40.]Pufendorf’s doctrine of the regular state—in which all the rights and powers ofsovereignty are held by a single authority—was directed against the conception ofmultiple authorities in the Aristotelian doctrine of the “mixed republic,” and againstthe reality of the German Empire, where lesser powers and estates claimed to exercisesovereignty rights on their own behalf. Pufendorf’s conception of the regular statewas a blueprint for the sovereign territorial state.

[41.]Here Tooke uses “Government” to translate Pufendorf’s respublica. Whileaccurate enough in itself, this leads to a degree of confusion in the present context,because of Tooke’s propensity to also use “government” to translate Pufendorf’s“state,” or civitas. The problem is that in this chapter Pufendorf draws a crucialdistinction between state (civitas) and form of government (respublica), identifyingthe former with the principle of sovereignty—that is, the principle of a supremeunified political authority—and the latter with the three governmental forms(monarchical, aristocratic, democratic) in which sovereignty can be exercised.

[42.]One of the most distinctive features of Pufendorf’s construction of sovereigntyand the state is that it is neutral between the three standard forms of government:monarchy, aristocracy, and democracy. In tying the legitimacy of sovereignty to theachievement of security and social peace—rather than to the representation of a priormoral will (God’s or the people’s)—Pufendorf can accept the legitimacy of all threeforms of government, to the extent that each succeeds in exercising supreme politicalpower in the interests of security.

[43.]Men of great talent.

[44.]Originally: respublica or “public administration” (government).

[45.]Originally: “state” or civitas.

[46.]I.e., maladministration.

[*]See L.= N.= N. l. 7. c. 5. §14, &c. Dissert. Accademic. de Rep. irregulari. p. 301.& in Append. ibid. p. §29. Eris Scandica. p. 176, 187.

[47.]Originally: “On the characteristics of civil authority” (De affectionibus imperiicivilis). The central attributes of the sovereign authority are that it is supreme,unaccountable, above the law, and venerable.

[*]Grotius de Jure Belli & Pacis, lib. 1. cap. 3. §6, &c.

[†]This Restriction must be carefully observ’d; for tho’ in a limited Monarchy, theSovereign can’t enact a Law without the Advice and Consent of his Peoplerepresented in Parliament, yet notwithstanding, this Authority of the People is notequal, much less superiour, to that of the Prince: The Author’s Account of the Natureof supreme Authority is imperfect; it ought to have comprehended distinctly what isequally agreeable to a limited and to an Absolute Sovereignty. [Barbeyrac’s note (I.1,



p. 298). In fact, Pufendorf discusses the distinction between absolute and limitedsovereignty in sections V and VI. It is indeed difficult to see how a sovereign boundby basic (parliamentary) laws may be considered “supreme,” unless of coursemonarch and parliament are considered jointly to be the sovereign authority, or unlessthe monarch is given the sole capacity to judge when he is acting in accordance withthese laws.]


[48.]It remains ambiguous here whether Pufendorf regards the king or “the king inparliament” as sovereign. Note that “Representatives in Parliament” is Tooke’sAnglicization of Pufendorf’s “deputies in assembly” (deputatis in comitia convocatis).

[49.]Royal rights.

[*]Grotius de Jure Belli & Pacis, l. 1. c. 3. §11. & l. 2. c. 7. §12.

[50.]The editors of the 1716/35 edition omitted the negative.

[*]Grotius de Jure Belli & Pacis, lib. 3. cap. 8.

[*]Grotius de Jure Belli & Pacis, Lib. 2. Cap. 7. §12, &c.

[†]Grotius de Jure Belli & Pacis, l. 2. c. 7. §12, &c.

[51.]The royal stock or lineage.

[52.]Pufendorf’s formulation is sharper and more “statist” than Tooke’s Whiggishrendering, as we can gather by comparing Silverthorne’s accurate translation of thissentence: “A clear account of the precepts that govern the office of the sovereign maybe drawn from the nature and end of states and from consideration of the functions ofsovereignty.” (Man & Citizen, p. 151)

[53.]Here Tooke fails to capture the meaning of Pufendorf’s original formulation,which is that rulers should cultivate the virtues required by large-scale administration(administratione maxime).

[54.]The original Latin formula—salus populi suprema lex est (the welfare of thepeople is the supreme law)—derives from classical Greek political thought. Pufendorfgives this traditional doctrine a new use by restricting the people’s welfare to theirpolitical security, setting aside all higher moral conceptions of the public good.

[*]See Dissertationes Academicae de Concord. Polit. cum Religione Christiana, Lib.II. Pag. 449. And also De Habitu Religionis Christianae ad Vitam Civilem: EspeciallyChapters 7, 47, 49. [The editors have added this footnote to two of Pufendorf’s largerdiscussions of the role of religion in civil life. At the center of these works liesPufendorf’s insistence that because they serve different ends—security andsalvation—the state and the church must not be combined to form a state church or achurch state.]



[55.]Tooke’s use of “nation” corresponds to nothing in Pufendorf’s original passage,which speaks only of the “security of the citizens” (securitas civium). Tooke’s“nation” belongs with his earlier use of “true Patriot” as a republican euphemism forPufendorf’s “good citizen.” The notion of the nation as the spiritual homeland of truepatriots is fundamentally at odds with Pufendorf’s conception of the state as aterritory governed by a sovereign authority in accordance with the end of security.

[56.]Having hit upon “nation” late in his translation, Tooke now proceeds to use it asone of the regular alternatives to Pufendorf’s “state” (civitas) and “government”(respublica). Tooke’s language thus becomes capable of insinuating a gap betweenthe interests of the nation and those of the state or prince, in keeping with Whigpolitics but quite at odds with Pufendorf’s language and logic.

[57.]Tooke’s substitution of “nation” for Pufendorf’s “state” (civitas) and the “unityof the people” for Pufendorf’s “union of citizens” (unione civium) is indicative of theemergence of a political language quite incapable of carrying Pufendorf’s keydistinctions between sovereignty and (form of ) government, state and society.

[58.]This warning principally concerned Catholic citizens, whose duties to atransterritorial religious and political power Pufendorf regarded as incompatible withtheir loyalty to the territorial state and its secular sovereign.

[59.]Tooke’s chapter heading is a circumlocution for Pufendorf’s “On the civil lawsin particular” (De legibus civilibus in specie). Tooke has difficulty in renderingPufendorf’s “civil law” in part because of the English identification of this with(continental) juscivile, and in part because the notion of laws deriving from the civilsovereign is foreign to the English tradition of “judge-made” common law.

[60.]Their origin.

[61.]For Pufendorf, the civil law thus agrees with the natural law in two distinct butrelated ways. First, there is a broad agreement between the two because the end of thenatural law, sociable existence, is achieved most fully in the state governed by thelaws of a civil sovereign. Second, there is the agreement arising from the fact that thestability and tranquillity of the state are enhanced if its citizens act in accordance withthe natural law (of sociability). This means that natural laws pertaining to social peacecan be enacted and enforced as civil law, thereby, in effect, closing the gap betweennatural and positive law. Pufendorf thus neutralizes the scholastic and religious usesof natural law as a moral weapon against the civil state: first, by identifying the end ofnatural law with the end of the civil state (security), and, second, by subordinatingnatural law to positive civil law. For Barbeyrac’s different view, see his twodiscourses in the appendix.

[62.]This restriction of political dissent to the domain of private opinion results fromtwo central Pufendorfian doctrines: first, from the fact that, in order to achieve unityof political will, individuals have agreed that the government’s decisions will bedeemed to be those of all, even if they are not; second, because only the civilsovereign (the government) has the right to translate the natural law into civil laws.



[*]This Distinction will by no means hold good; for if the Thing commanded by theSovereign, be manifestly Criminal, Unjust, and Unrighteous, let it be commanded inwhat Way and Method it will, and inforced with the greatest Threats possible, it oughtnot to be comply’d with. See L. N. N. Lib. 1. Cap. 1. §24. [This shows the degree towhich Pufendorf’s construction of the citizen’s civil duties separates these from themoral duties of the man and the Christian. Only the sovereign may determine whetherhis commands are in accord with the natural law, hence only the sovereign isresponsible if they are not. Barbeyrac’s footnote IX.1, p. 322, presumes to thecontrary that ultimate responsibility rests in the conscience of each individual.]

[*]Grotius de Jure Belli & Pacis, l. 2. c. 20, & 21.

[63.]Pufendorf advances a secular conception of punishment in which severity is tiedto the state’s interest in social peace and hence to the deterrent effect of thepunishment, rather than to the notion of exacting retribution for a breach of the moralorder. This modern conception of punishment makes sense only in a desacralizedpolitical order where security has replaced religious morality as the objective of lawand government.

[*]The Author here reasons on a false Hypothesis. He pretends, as is plain from whatis here laid down, That no one can inflict any Punishment on another, unless he be hisSuperiour. Now in the State of Nature all are equal; and then all Natural Laws wouldbe useless and insignificant, if a Power, in such Case, were no where lodged to punishthose who violate them, either with Respect to any private Person, or to Mankind ingeneral; the Preservation of which is the End of these Laws, to the Observation ofwhich all Men stand under a common Obligation. In this independent State, every onehas a Right to put these Laws in Execution, and to punish the Person who violatesthem. See L. N. N. Lib. 8. Chap. 3. §4. [In this note (V.1, p. 325) Barbeyrac rejectsPufendorf’s treatment of punishment as a right belonging solely to the civil state andits sovereign; for this is a further sign of Pufendorf’s tendency to collapse natural lawinto positive civil law. Conversely, by arguing that men possess the natural right topunish each other for breaches of the natural law in the state of nature, Barbeyracmaintains the theological view of punishment as retribution for breaches of the moralorder—a view that permits individuals to punish a “tyrannical” sovereign.]

[64.]Liable or subject to.

[65.]Pufendorf’s restriction of punishment to external acts capable of threateningsecurity is a key means of excluding the church from the state and establishingreligious toleration. The “liberal” and absolutist dimensions of Pufendorf’s thoughtthus both flow from the same source: his restriction of sovereign power to theobjective of social peace, over which it has sole disposition.

[66.]Originally: “the safety of the state” (salus civitatis).

[67.]Following Barbeyrac, the editors have reversed the order of Pufendorf’s final twosections.



[68.]Tooke’s all-purpose use of community is again potentially misleading. HerePufendorf is concerned not with the political community or state (civitas) but with theprivate corporation (universitas) and the degree of liability of its members.

[69.]Meaning “subordinated to.”

[70.]Originally: sovereigns have three kinds of right over the property of citizens, inaccordance with the nature and purpose of the state.

[*]Grotius de Jure B. & P. L. 1. c. 1. §6. L. 2. c. 14. §7. L. 3. c. 19. §7. Junct. l. 3. c.1. §15.


[*]Grotius de Jure Belli & Pacis, l. 2. c. 1, &c. to l. 2. c. 23.

[†]Grotius de Jure Belli & Pacis, lib. 2. cap. 23, 24.

[‡]Grotius de Jure Belli & Pacis, lib. 2. c. 23. §12.

[§]Grotius, l. 2. c. 24. §4.

[?]Grotius, l. 2. c. 1. §17. Cap. 22. §5.

[¶]Grotius de Jure Belli & Pacis, l. 3. c. 1. §6, &c.

[*]Grotius, l. 3. c. 4. §2. Cap. 11, 12, &c.

[71.]In conceiving of the enemy only as someone who threatens the rights of theterritorial sovereign, hence as someone who need be harmed only to the extent that itis necessary to defend these rights, Pufendorf is reflecting the secularized conceptionof the enemy that arose following the Thirty Years’ War and the Peace of Westphalia(1648). The enemy was no longer a criminal or heretic on whom one waged war ofannihilation, but a “just enemy” on whom one waged limited war in order to protectpurely secular territorial rights.

[†]Grotius de Jure Belli & Pacis, l. 1. c. 3. §4.

[‡]Grotius, &c. l. 1. c. 3. §1.



[†]Grotius de Jure Belli & Pacis, l. 3. c. 1, &c. c. 4. §15, &c.

[*]Grotius, l. 3. c. 6.




[72.]I.e., imperium or rule.

[‡]Grotius de Jure Belli & Pacis, l. 3. c. 7. &c. 15.


[†]Grotius, l. 3. c. 20. §2, &c.

[73.]Pufendorf’s Latin term is foedera, which covers both treaties and alliances.


[74.]Neither party is subordinate to the other.


[76.]In this chapter Tooke uses “commonwealth” rather than “community” totranslate Pufendorf’s civitas.

[1.]G. W. Leibniz, Political Writings, P. Riley trans. and ed. (Cambridge, 1972), pp.64–75. Riley translates the title as “Opinion on the Principles of Pufendorf.”

[2.]Discours sur la Permission des Loix (Fabri et Barillot, Genève, 1715); republishedby Pierre de Coup, Amsterdam, 1715. Discours sur le Bénéfice des Loix (Fabri etBarillot, Genève, 1716); republished by Pierre de Coup, Amsterdam, 1716.

[3.]In the following translation of the Judgment and the Discourses, the page numbersgiven in square brackets refer to Barbeyrac’s text as printed in the 1735 edition of Lesdevoirs de l’homme et du citoien. The numbered footnotes are Barbeyrac’s.

[1.]That is to say, the late Mr Leibniz. See the postface to the fourth edition of mytranslation.

[2.]Böhmer was then Professor of Politics and Rhetoric. In 1710 he became Professorof Theology, while retaining his other two chairs. Subsequently, in 1723, he wasmade Abbot of Loccum, succeeding his uncle Gerhardt Walter van den Muelen. Hewas neither the brother, nor the relative of the famous Mr Böhmer, Professor at Halle,as I had conjectured he might be.

[3.]This was pure conjecture on my part, given my intention to appear to knownothing of the identity of the writer, although I knew it perfectly well. Leibniz hadhimself sent this piece, by the post, to one of my friends in the neighbourhood ofLausanne, knowing that it would be communicated to me. Therefore I could scarcelyimagine that it had been published without his permission. If Mr Böhmer had paidattention to what I subsequently stated, in my Postface, when, the situation havingchanged with the death of Mr Leibniz, I believed I could reveal the name of theanonymous writer, the author of this Opinion here translated with my commentary, hewould soon have recognised that I had not seriously suspected him of taking theliberty of printing the work without the author’s consent. This was his complaint to



me in a gracious letter that he did the honour of writing to me in November 1719,when sending me a second edition of his Academic Programs. In the letter heinformed me that, in response to a request, Mr Leibniz had written and conveyed hisOpinion to the late Mr Gerard Molan, Abbot of Loccum and Director of the Churchesof the Electorate of Brunswick, Mr Böhmer’s own uncle. The piece had been sent on22 April 1706, with full permission to have it printed under the title Epistola ViriExcellentissimi ad Amicum, qua monita quaedam ad principia Pufendorfiani OperisDe Officio Hominis & Civis continentur. But it was three years before Mr Böhmerhad occasion to act on the permission. Given this declaration on my part, I hope thatMr Böhmer will not find it displeasing if I do not erase with a “perhaps” what I saidhere concerning him. To do so would require me to change my plan to leave—forgood reasons—the text of my reflections precisely as it was composed.

[4.]I did not know then what I later learned on arriving at Groningen, that the late MrAlexandre Arnold Pagenstecher had already had Mr Leibniz’s letter printed in 1712,and revealed the author’s identity, having himself found the name indicated in aFlemish journal, the Neuer Bucher-Saal. He published it at the end of Van Velsen’sedition of Pufendorf’s De Officio Hominis et Civis, an edition of which I had notheard.

[5.]The person to whom the letter is written—he too is not named—is addressed hereas “most eminent man,” vir summe. It is Mr Abbot Molan, or Molanus. See the note top. 380.

[6.]“Suo quondam merito celeberrimi.” He is yet more renowned since his death thanhe was in his lifetime.

[7.]See the fine and judicious Reflexions sur l’Utilité des Mathématiques of Mr deCrousaz.

[8.]Stricturae in Grotium, etc. This work, and its author, are not held in great esteemby judicious scholars even in his own nation. See L’Histoire du Droit Nat. by MrBuddeus, §.27, at the head of the Selecta Jur. Nat. & Gent. et la Bibliotheca Juris deMr Struvius, p. 347, 5th Edit. The latter speaks of Felden (or de Felde) on theoccasion of a book that he published in 1664 at Frankfurt and Leipzig, under the titleElementa Juris Universi, & in Specie Publici Justinianei. I have since seen this work,and as a result am more than ever convinced that there is no reason to expect fromsuch a mind all that Mr Leibniz promised himself regarding what is required. I wrotefurther on this in my Preface on Grotius (p. ix), and I do not retract what I said there.What is more, Mr Leibniz’s defender, having never apparently heard of Feldenus,thought to work a miracle in changing this name to that of Seldenus, as if there was aprinting error or some inadvertency in the original text. However, the name ofFeldenus appears also in the second edition that Mr Böhmer published in 1716.Basically, no-one who knows the works of the English scholar will ever imagine thatMr Leibniz could have judged him likely to provide a system of natural law,according to the concept and plan that he believed this should follow. His goodopinion of Feldenus was based, it appears, on the Elementa Juris Universi, to which



he refers in his Nova Methodus docendae discendaeque Jurisprud., printed in 1668 atFrankfurt, p. 39.

[9.]By Mr Andrew Took[e], Professor of Geometry at Gresham College, printed atLondon in 1716. The translator added my notes, but he had seen only my first edition.

[10.]By Mr Spavan who, from what is said, also used my notes on both of Pufendorf’sworks. This abridgment appeared at London, in 1716, in two octavo volumes.

[11.]So our anonymous writer has published something else, as it appears also fromwhat he says at the end of his letter. But I am no clairvoyant. This is what I said,speaking as if I did not know the author of this piece. Now I can indicate the work towhich he refers. It is the Preface to the Codex Juris Gentium Diplomaticus, pp. 7, 8.See also his Jugement sur les Oeuvres de Mylord Shaftsbury, published after hisdeath, by Mr Des Maizeaux, in the Recueil de diverses Pièces sur la Philosophie, laReligion Naturelle, etc., Vol. II, p. 282.

[12.]In a dissertation of Jo. Ludovici Praschii, entitled Designatio Juris Naturalissecundum disciplinam Christianorum, which appeared in 1689.

[13.]Sit spes fallendi, miscebis sacra profanis. It is a line of Horace, Book I, Epist.xvi, 54.

[14.]Eaque firma ratio est, quâ homines omnem Juris obligationem in factum traducidebere intelligant, si sibi ipsis consulere velint.

[15.]See my comment in this volume, Book I, chap. I, §.11, note 3.

[16.]See a passage from Plato that I cited in my Preface to Droit de la Nature et desGens, §.21, p. lxxxvi of the second edition.

[17.]See what our author says in Droit de la Nature et des Gens, Book II, chap. iii,§.19, where he maintains that it has not yet been proven, that every good action mustnecessarily be followed by some external reward.

[18.]Jus quoque Naturale MAGNAM PARTEM circa formandas hominis actionesexteriores versetur. In his 1728 edition of De Offic. Homin. & Civ., Mr Otto heredeclared himself opposed to Mr Leibniz and his defender.

[19.]See what the author says in his Specimen controversiarum &c, chap. iv, §.19, towhich I refer below regarding section XI.

[20.]Compositum jus fasque animi, sanctosque recessus, / Mentis, et incoctumgeneroso pectus honesto, Haec cedo, ut admoveam templis, et farre litabo. Persius,Satirae II, 73, et seq.

[21.]See the treatise De Officiis: Sed aliter Leges, aliter Philosophi, tollunt astutiasLeges, quatenus manu tenere possunt; Philosophi, quatenus rationi & intelligentia.Book III, chap. xvii.



[22.]Our author himself cites a passage from this philosopher, to this effect. Otherreferences have been added in the notes on Droit de la Nature et des Gens, Book VII,ch. ix, §.4.

[23.]Ut adeo etiam parum tuta aut facilis sit hypothesis, animi intus pravi, forisinnoxii.

[24.]Sed quum in internis quoque jus & obligationem, peccataque in Deum, & rectasactiones, natura constitui, nemo negare possit &c.

[25.]De Jure Belli ac Pacis, Prolegom., §.11.

[26.]See chap. iii of this Abridgment, §§.10, 11.

[27.]See Droit de la Nature et des Gens, Book II, chap. i, §.3, and chap. iii, §§.5, 20;and in Eris Scandica, Apolog., §§.7, 8; Specimen controver., chap. iv, §§.3 et seq.,and chap. V, tot., etc.

[28.]Non nisi spe metuque obligari, & in divina maxima vindictae exspectatione,quam nec morte effugere detur, necessitatem plenam, & in omnes valituram, servandijuris & aequi, posse inveniri.

[29.]Itaque ego illum feliciorem dixerim, qui nihil negotii secum habuit: hunc quidemde se melius meruisse, qui malignitatem naturae suae vicit, & ad sapientam se nonperduxit, sed extraxit. Seneca, Epistolae LII. And see preceding.

[30.]Et multa nobis imperat ipsa ratio, ut naturae melioris ductum sequamur, nenobis vel malum accersamus, etc.

[31.]Hoc rationis praeceptum omne quum simul alios spectat, quorum id refert, adJustitiam pertinet.

[32.]Duas Respublicas animo complectamur: alteram magnam, et vere publicam, quâDii atque Homines continentur; in quâ non ad hunc angulam respicimus, aut adillum, sed terminos civitatis nostrae cum sole metimur: alteram, cui nos adscripsitconditio nascendi. Seneca, De otio Sapientis, chap. xxxi.

[33.]Si popularia ad rem quid facerent, dici quoque posset, hunc Mundum magnamesse civitatem, cujus supremus Rector Deus est. Specimen Controvers. chap. iv, §.7.

[34.]Et quam, quaeso, vim rationibus ultra se ipsum metus dabit, quam sinerationibus non praestat sibi?

[35.]Finem Juris Naturalis esse bonum servantium: Objectum, quidquid alioruminterest & in nostra est potestate: Causam denique efficientem in nobis esse Rationisaeterna lumen divinitus in mentibus accensum.

[36.]Viris quibusdam acutis nimis obvia visa esse, atque inde paradoxotera quaedamexcogitata, quae novitatis specie blandirentur &c.



[1.]Vir bonus est quis? Qui consulta Patrum, qui Leges Juraque servat Sed videt huncomnis domus & vicinia tota Introrsus turpem, speciosum pelle decora. Horace, BookI, Epist. xvi, line 40 et seq.

[2.]Jus est ars boni & aequi. Cujus merito quis nos Sacerdotes adpollet. Justitiamnamque colimus, & boni & aequi notitiam profitemur: aequum ab iniquo separantes,licitum ab illicito discernentes: bonos non solum metu poenarum, verum etiampraemiorum quoque exhortatione efficere cupientes: veram, nisi fallor, Philosophiam,non simulatam adsectantes. Digest Book I, title I, De Justitia & Jure, Leg. I, §.i.

[3.]Non omne, quod licet, honestum est, Digest, Book L, title 17, De diversis RegulisJuris, Leg. CXLIV, princ.

[4.]Cicero made the point well: Constituendi vero Juris ab illa summa Lege capiamusexordium, quae saeculis omnibus ante nata est, quàm scripta Lex ulla, aut quàmomnino Civitas constituta. [In determining the truth of justice, let us start with thatsupreme law that was born centuries before any law was written, or before any statewas established.] De Legibus, Book I, chap. vi. Nec, quia nusquam erat scriptum, utcontra omnes hostium copias in ponte unus adsisteret, a tergoque pontem interscindiju beret, idcirco minus Coclitem illum rem gessisse tantam, fortitudinis lege atqueimperio, putabimus: nec si, regnante Tarquinio, nulla erat Romae scripta Lex deStupris, idcirco non contra illam Legem sempiternam Sextus Tarquinius vimLucretiae, Tricipitini Filiae adtulit: erat enim Ratio, profecta a rerum natura, & adrectè faciendum impellens, & a delicto avocans: qua non tum denique incipit Lexesse, quum scripta est, sed tum, quum orta est. [That nowhere was it written that oneman should stand at the bridge against all the forces of the enemy and command thatthe bridge should be torn down behind him, does not mean we should not believe thatHoratio did this great deed according to the law and the command of courage. Northat, because there was in the reign of Tarquinius no Roman written law of rape, theviolence used by Sextus Tarquinius against Lucretia, Tricipitinius’ daughter, was notagainst the eternal law. In fact reason existed, derived from true nature, directingpeople towards doing good and calling them away from crime, and did not become alaw only when set in writing, but when it first originated.] Idem, ibid. Book II, chap.iv.

[5.]This is the description that Cicero offers, in a passage of the Republic that one ofthe Church Fathers has conserved for us: Est quidem vera Lex, recta Ratio, naturacongruens, diffusa in omnes, constans, sempiterna, quae vocet ad officium jubendo,vetando a fraude deterreat: quae tamen neque Probos frustra jubet, aut vetat, necImprobos jubendo, aut vetando, movet. Huic Legi nec obrogari fas est, nequederogari ex hac aliquid licet, neque tota abrogare potest. Nec vero, aut per Senatum,aut per Populum, solvi hac Lege possumus. Neque est quaerendus explanator autinterpres ejus alius: nec erit alia Lex Romae, alia Athenis, alia nunc, alia posthac, sed& omnes gentes & omni tempore una Lex & sempiterna, & immortalis, continebit:unusque erit communis quasi Magister & Imperator omnium Deus ille, Legis hujusinventor, disceptator, lator, &c. Lactantius, Book VI, chap. viii.



[6.]On this ground, the same author I have just cited maintains that an unjust law isnot a true law: Ex quo intelligi par est, eos qui perniciosa & injusta Populis jussadescripserint, quum contra fecerint, quam polliciti professique sint, quidvis potiustulisse, quam Leges: ut perspicuum esse possit, in ipso nomine Legis interpretandoinesse vim & sententiam Justi & Juris legendi. [From which this is to be understood,that those who instituted laws harmful and unjust towards the people, by doing whatwas contrary to what they promised and proclaimed, brought forth anything but laws;thus it must be clear that the very term “law” carries the sense of choosing that whichis just and right.] Cicero, De Legibus, Book II, chap. v. See what Plutarch said on thesubject of Stratocles, in his Life of Demetrius, pp. 899, 900, Vol. 1, Ed. Wechil (Vol.V, p. 30, Edit Londin, 1729).

[7.]Hence in Hebrew and in Greek, the same words that signify “law” and “justice”can sometimes also stand for “custom.” See Mr Le Clerc on I Samuel, chap. viii,verse 2.

[8.]See Plato, De Legibus, Book III, p. 681, Vol. II, Edit. H. Steph.

[9.]There is a short discourse of Dion. Chrysostom (Orat. LXXXI), in which thisorator shows how men subject themselves more easily to customs than to laws, andhow difficult it is to abolish the former and to establish the latter, given this prejudice.

[10.]It is on this basis that one can apply to individuals what Quintilian said of judges,namely that they must not always dissect to an ultimate degree the justice of the laws,these having been established in order to specify the range of judgments on manythings about which there was no agreement as to what was just: Interim hoc dico,Judices, Perniciosissimam esse Civitati hanc Legum interpretationem. Nam si apudJudicium hoc semper quari de Legibus oportet, quid in his justum, quid aequum, quidconveniens sit Civitatis supervacuum fuit scribi omnino Leges. Et credo fuissetempore aliquando, quae solam & nudam Justitia haberent aestimationem. Sedquoniam hac ingeniis in diversum trahebatur, nec umquam satis constitui poterat,quid oporteret; certa forma, ad quam viveremus, instituta est. Declam., CCLXIV.

[11.]Quod si Populorum jussis, si Principum decretis, si sententiis Judicum, Juraconstituerentur; Jus esset, latrocinari; jus, adulterare, jus testamenta falsasupponere; si haec suffragiis aut scitis multitudinis probarentur. Quod si tantapotestas est stultorum sententiis atque jussis, ut eorum suffragiis rerum naturavertatur: cur non sanciunt, ut quae mala perniciosaque sunt, habeantur pro bonis acsalutaribus? aut cur, quam jus ex in iuria Lex facere possit, bonum eadem non facerepossit ex malo. [If the laws were established by decree of the people, by the order ofprinces or by the decisions of judges, it would then be lawful to commit robbery,lawful to commit adultery, lawful to fake wills, if this was approved by the popularvote or plebiscite. Because if the views and judgments of fools have such power thatthey can turn nature upside down by their decree, why do they not confirm that thosethings which are bad and harmful are to be considered good and healthy for us? Orwhy, since law is able to make injustice just, can it not make good from evil?] Cicero,De Legibus, Book I, chap. xvi.



[12.]This still happens in China, in Japan, and perhaps in various other countries ofthe Orient. There is even talk of a law, observed for more than a century in Matamba,according to which fathers and mothers were obliged, under pain of severe sanctions,to expose or kill the male children that were born to them. See the extract from anItalian voyage, in the Bibliothèque Universelle, Vol. IX, pp. 418 et seq. One can alsoconsult the Analecta Sacra of J.= H. Ursinus, Book I, chap. ix.

[13.]Sed nobis ita complectanda in hac disputatione tota causa universi Juris est, acLegum, ut hoc, Civile quod dicimus, in parvum quemdam & angustum locumconcludatur Natura. [But it is for us in this argument to address the whole issue ofuniversal law, such that what we call “civil law” is contained within a small andnarrow part of nature.] Cicero, De Legibus, Book I, chap. v. Mr Davies, in his 1727edition, omits the final word Natura, because, he says, it disturbs the meaning. But byhis admission this word is in most manuscripts and it makes, in my opinion, perfectsense. Cicero means to say that the civil law constitutes a very limited part of thisuniversal jurisprudence which, he then explains, is founded in nature itself, as hedeclares immediately afterwards. The word Natura, which opens the followingsentence, has eclipsed Natura in the rare manuscripts in which this final word of thecited sentence is missing.

[14.]See my Traité de la Morale des Pères, published in 1728, chap. xii, §.53.

[15.]On this one may also see Bernardi Henrici Reinoldi, Var. ad Jus Civile ferepertinent., chap. xv.

[16.]As occasionally occurs also in the most corrupt of times. See the Continuationdes Pensées sur la Comète, by the late Mr Bayle, pp. 636 et seq., Article CXXX.

[17.]It is in this light that Cicero establishes as one of his proposed laws, in Plato’smanner: Perjurii poena divina, exitium: humana, dedecus, De Legibus, Book II, chap.ix.

[18.]Hoc frequentissimum crimen [ingrati animi] nusquam punitur, ubiqueimprobatur. Neque absolvimus illud: sed, quum difficilis essa incerta res aestimatio,tantum odio damnavimus, & inter ea reliquimus, quae ad Judices Deos mittimus. DeBenefic., Book III, chap. vi.

[19.]Jam pridem equidem nos vera rerum vocabula amisimus: quia bona alienalargiri, liberalitas; malarum rerum audacia, fortitudo vocatur. Sallust, Catilin., chap.lv.

[20.]Ut hoc ita sit, quam angusta innocentia est, ad Legem bonum esse? quanto latiusOfficiorum patet, quam Juris regula? quam multa Pietas, Humanitas, Justitia,Liberalitas, Fides, exigunt, quae omnia extra publicas tabulas sunt? Seneca, De Ira,Book II, chap. xxvii. Mr Schulting has made a commentary on this passage of Seneca,in a speech pronounced on leaving the rectorate at the University of Leyden, andwhich was soon printed, in 1730, under the title Sermo Academicus Sollennis Deangusta innocentia Hominis ad Legem boni.



[1.]As attributed by Lucian to Hesiod, in Hermotim., Vol. I, p. 506, Amsterdam Edit.Plato goes further, saying that to have begun is to have done more than half, DeLegibus, Book VI, vol. ii, p. 753, Edit. H. Steph. See Erasmus, Adages, for theproverb: Principium, dimidium totius.

[2.]These are the terms of the law, as Aulus Gellius recorded them: TERTIIS. (inquit)NUNDINIS.PARTIS.SECANTO.SI.PLUS.MINUS.VE.SECUERUNT.SE.FRAUDE.ESTO,Noct. Artic., Book XX, chap. i. In his Preface on Vol. 3 of the Thesaurus Juris, p. 24,Mr Otto sacrifices the humanity and the good sense of the Decemvirs who composedthe Twelve Tables to the elevated idea he has of some authors of much later centuries.He could not bring himself to believe that the latter had misunderstood the terms ofthis law, even though Aulus Gellius recognizes, in the same place, that there were inthe Twelve Tables many things the sense of which had long been lost. It is not eventhe sole instance of ancient authors who, for all their skill, went astray in explainingwords in their own language. One has only to see one of the letters of the celebratedTanneouy Le Fèvre, Book I, Epist. iv.

[3.]Sunt enim quaedam non laudabilia naturae. Sed Jure concessa: ut in XII. Tabulis,debitoris corpus inter creditores dividi licuit, quam legem mos publicus repudiavit.Instit. Orat., Book III, chap. vi, p. 173. Edit. Obrecht.

[4.]It is Mr Noodt who discovered this. See his Julius Paulus, chap. xi, in fin., and histreatise De forma emendandi Doli mali, chap. vi.

[5.]Licet autem venditori vel effundere vinum, si diem ad metiendum praestituit, necintra diem admensum est. Effundere autem non statim poterit, prius quam testandodenunciet emtori, ut aut tollat vinum, aut sciat futurum ut vinum effunderetur. Sitamen, quum posset effundere, non effundit, laudandus est potius, … commodius estautem, conduci vasa, nec reddi vinum, nisi, quanti conduxerit, ab emtore reddatur,aut vendi vinum bona fide, id est quantum sine ipsius incommodo fieri potest, operamdare, ut quam minimo detrimento sit ea res emtori. Digest, Book XVIII, De peric. &commod. rei. vend. Leg. I, §.3. See the dissertation of Mr Brenckman, de Eurematicis&c, chap. xii, §.16, n. 14.

[6.]This is what Thucydides teaches us, taking his proof from the ancient poets. SeeHomer, Odyss. Book II, verse 71 et seq., Book IX, verse 252 et seq., and Hymn. inApoll., verse 452.

[7.]Bodin, in his treatise De la République, speaks of this droit de Bris, or of Warech(a word from the German), as of something whose usage was, in his time, “commonto all those carrying goods by sea.” And on this he records a response of the SupremeCommander Anne de Montmerency to the Ambassador of the Emperor, Book I, chap.x, p. 247, French Edit., Genev. 1608 (pp. 267, 268 of the Latin Edit., Francf. 1622).Some German authors say that this custom was observed also with respect toshipwrecks occurring on the Rhine, and other rivers. See Hertius, dissert. DeSuperiorit. Territor, §.56, Vol. I, Comm. & Opusc., and Nicol. Henelius, OtiiVratislav. chap. xxxvii.



[8.]In Holland, one year and six months are allowed. Even when this time has elapsed,the original owners can still easily repurchase their goods at a low price. See Vinnius,on the Institutes, Book II, title I, §.47; and on the practices in other nations,Loccenius, De Jure Maritimo, Book I, chap. vii, §.10.

[9.]Mr Thomasius speaks of this as if it was well known and proven, in hisdissertation De Statu Imperii potestate legislatoria &c, §.42; and another Germanprofessor names the island of Nordstrand, in the Duchy of Schleswig, as one of theplaces where this practice has been recorded. See Mr Weber, in a note on Pufendorf,De Offic. Hom. & Civ., Book I, chap. v, §.3, where it appears the author himself hadthis practice in view.

[10.]It was Evenus III who made this law, as recorded by Buchanan: Ut rex antenuptias Sponsarum Nobilium, Nobiles Plebejarum praelibarent pudicitiam: utPlebejarum uxores cum Nobilitate communes essent, Hist. Scot., Book IV, fol. 37,Edit. Edimburg. 1582.

[11.]Milcolumb III (or Malcolm), at the request of his wife, Queen Marguerite,allowed new husbands to buy back the wedding night, by paying their lord half-a-marc of silver: Uxoris etiam precibus dedisse fertur, ut primam novae nuptae noctem,quae Proceribus per gradus quosdam, lege Regis Eugenii (it is the same name asEvenus) debebatur, sponsus dimidiata argenti marca redimere posset: quampensionem adhuc Marchetas mulierum vocant., Buchanan, Book VII, fol. 74. Polydor.Virgil, Hist. Angl., Book X, p. 223, edit. Lugd. Bat. 1649. Hector Boethius, Hist. Scot.This tribute is still called “marchet” or “maidenrents.” See the Laws of Scotland, Edit.Edimburg., 1609, Book IV, chap. xxxi, with notes, and the Glossary of Du Cange,under the word “marcheta,” where he reports other similar examples.

[12.]The canons of Lyon, and, before them the counts: see Choppin, Ad Leg. And.,Book I, De Jurisd. Andegav., chap. xxxi, no. 2; Camil. Boreli, Conf. I, no. 150. Thisright was called jus luxanda coxae, right of thighage, also known by another moreexpressive name. See Nicol. Henelius, Otii Vrastislav., chap. xlvii, p. 401.

[13.]Quintilian, the father or grandfather of the rhetorician, introduces a husband who,having killed his wife caught in flagrante delicto, as was formerly permitted amongseveral nations, comes to reproach himself; Quintilian draws out from this the maximthat what the laws permit does not always set the conscience at rest: Mori volo, quiauxorem meam occidi, qualemcumque. Licuit, scio: Sed non semper ad animampertinent jura. Occidere adulteros lex permittit: ego mihi sit irascor, tamquam nefasfecerim. Declamat. CCCXXXV, p. 691, Ed. Burm.

[14.]Plutarch, in Vit. Solon, Vol. I, p. 86, C. Ed. Wech.

[15.]Sed aliter Leges, aliter Philosophi tollunt astusias: Leges, quatenus manu tenerepossunt; Philosophi, quatenus ratione & intelligentia. Cicero, De Offic., Book III,chap. xvii. The poet Persius says that it is not for a Praetor, or a judge, to preferprecise rules of conduct: Non Praetoris erat stultis dare tenuia rerum / Officia, atqueusum rapidae permittere vita., Sat. V, vers. 93, 94.



[16.]This is what Pliny the Younger gives us to understand, in a passage of Letter xviof Book II, which will be cited toward the end of this discourse.

[17.]See Grotius, Droit de la Guerre et de la Paix, Book II, chap. xviii, §.10; andPufendorf, Droit de la Nature et des Gens, Book V, chap. ii, §.3, note 1.

[18.]Such that whoever gave his word in this way had, with regard to such contracts,the freedom to withdraw his word, before the other party had fully executed his part,even when the latter had committed no fault, and was ready to perform the agreement;an evident inequality, contrary to the end of agreements and natural equity. See what Isaid on Grotius, Droit de la Guerre et de la Paix, Book II, chap. xii, §.1, note 8. It isalso to be observed that a simple agreement (pactum nudum) remained null andwithout force, even when it had been sworn.

[19.]This philosopher places the breach of an agreement on the same level as theindiscretion of those who reveal the confidences that a friend has shared with them;and he gives these as examples of things which are dishonest, even though permittedunder the laws: Sed lex, inquit, non permittendo exigere, vetuit. Multa legem nonhabent, nec actionem, ad quae consuetudo vitae humanae, lege omni valentior, dataditum. Nulla lex jubet amicorum secreta non eloqui, nulla lex fidem, etiam inimico,praestare. Quae lex ad id praestandum nos, quod alicui promisimus, adligat? Querattamen cum eo, qui arcanum sermonem non continuerit, & fidem datam, nec servatam,indignabor. De Benefic., Book V, chap. xxi.

[20.]Puta, quadam earum [usurarum] ex stipulatione, quadam ex pacto naturaliterdebebantur, Digest, Book XLVI, Title iii, De Solution. & liberationibus, Leg. V, §.2.Is natura debet, quem jure Gentium dare oportet, cujus fidem sequenti sumus, BookL, Title xvii, Diversis Reg. Juris, Leg. LXXIV, §.1.

[21.]See, on all these matters, the fine treatise of Mr Noodt, De Pactis &Transactionib., chap. x, et seq.

[22.]See my Traité du Jeu, Book III, chap. ix; and what I said in defense of myprinciples in the Journal des Savans, August 1712, Paris Edit. (October 1712,Amsterdam Edit.), and in December 1713, Paris Edit. (February and March, HollandEdit.).

[23.]Quid tu tam imprudentes judicas majores nostros fuisse, ut non intelligerent,iniquissimum esse, eodem loro haberi eum, qui pecuniam, quam a creditoreacceperat, libidine aut alea absumsit, & eum qui incendio, aut latrocinio, aut aliquocasu tristiore, aliena cum suis perdidit? Nullam excusationem receperunt, ut hominesscirent, fidem utique praestandam. Satius enim erat a paucis etiam justamexcusationem non accipi, quam ab omnibus aliquam tentari. De Benefic., Book VII,chap. xvi.

[24.]See what I said concerning this matter, on Pufendorf, Droit de la Nature et desGens, Book IV, chap. xii, §.8, note 3.



[25.]In what were termed Stricti. juris, or rigorous law. See the treatise of Mr Noodt,De Jurisdict. & Imperio, Book I, chap. xiii.

[26.]Si quis agens, in intentione sua plus complexus fuerit, quam ad eum pertineat:caussâ cadebat, id est, rem amittebat, nec facile in integrum a Praetore restituebatur,nisi minor erat viginti quinque annis. … Sane si tam magna caussa justi errorisinterveniebat, ut etiam constantissimus quisque labi posset; etiam majori vigintiquinque annis succurrebatur … Plus autem quatuor modis petitur; re, tempore, loco,caussa. Institut., Book IV, Title vi, §.33.

[27.]Pliny the Younger says that practitioners, such as himself, learn many tricks atthe bar, even though they do not approve of them: Mos enim, qui in Foro verisquelitibus terimur, multum malitia, quamvis nolimus, addiscimus. Book II, Epist. iii.

[28.]Here one can apply what the jurisconsult Ulpian says regarding a right ofservitude that he judges inappropriate: Sive perperam [pronuntiatum est, non debet eiServitus cedi] quia per sententiam non debet servitus constitui, sed, quae est,declarari. Dig. Book VIII, title viii, Si Servitus vindicetur, Leg. VIII, §.4. The Romanjurisconsults also recognized that a genuine debtor, although absolved by the judge’sverdict, still remained a debtor naturaliter. See Grotius, Droit de la Guerre et de laPaix, Book III, chap. ii, §.5, note 2.

[29.]“It is true, they say, this sum is owed to him, and right is on his side; but I shalllie in wait for him with this little formality; if he forgets it, he will never recover, andin consequence he loses his money, or else is incontestably deprived of his right; sonow he will forget this formality. That is what I call a practitioner’s conscience. Afine maxim for the courtroom, useful to the public, imbued with reason, wisdom andequity, it will be precisely the contrary of the maxim that said that form overridescontent.” La Bruyère, Caractères, ou Moeurs de ce Siècle, ch. De quelques usages,pp. 216, 217, Vol. II, Edit. Amst., 1731.

[30.]Ah! miser & demens, viginti litigat annis / Quisquam, cui vinci, Gargiliane,licet?, Martial, Book VII, Epigr. lxiv, I, 5.

[31.]Verum illud, Chreme, Dicunt, jus summum saepe est malititia, Terent., Heaut.,Act IV, sc. v, verses 47, 48. Ex quo illud, summum ius, summa iniuria, factum est jamtritum sermone proverbium., Cicero, De Offic., Book I, chap. x. See on this theinterpreters.

[32.]Convenit autem … aequum & facilem [esse]; multa multis de jure suo cedentum;a litibus vero, quantum liceat, & nescio an paulo plus etiam, quam liceat,abhorrentem. De Offic., Book II, chap. xviii.

[33.]This is what Pliny says to a friend who warned him of the nullity of the codicil:Tu quidem, pro cetera tua diligentia, admones me, Codicillos Aciliani, qui me exparte instituit heredem, pro non scriptis habendos, quia non sint confirmatitestamento. Quod jus ne mihi quidem ignotem est, quum sit iis etiam notum, qui nihilaliud sciunt: sed ego propriam quamdam legem mihi dixi, ut defunctorum voluntates,



etiamsi jure deficerent, quali perfectas tuerer? … Nihil est, quod obstet illi meae legi,cui publicae leges non repugnant. Book II, Epist. xvi, num. 1, 2, 4, Edit. Cellar.

[34.]Scribis, mihi Sabinam, quae nos reliquis heredes, Modestum servum suumnusquam liberum esse jussisse; eidem tamen sic adscripsisse legatum: Modesto, quemliberum esse Jussi. Quaeris, quid sentiam. Contuli cum prudentibus. Convenit interomnes, nec libertatem deberi, quia non sit data; nec legatum, quia servo suo dederit.Sed mihi manifestus error videtur… . Neque enim minus apud nos honestas, quamapud alios necessitas valet. Moretur ergo in libertate, sinentibus nobis, fruator legatoquasi omnia diligentissime caverit. Cavit enim, quae heredes bene elegit. Book IV,Epist. x.

[35.]Nec heredem institui, nec praecipere posse Rempublicam, constat. Saturniusautem, qui nos reliquit heredes, quadrantem Reipublica nostra, deinde pro quadrantepraeceptionem quadringentorum millium dedit… . Mihi autem defuncti voluntas(verior quam in partem Jurisconsulti, quod sum dicturus, accipiunt) antiquior jureest, utique in eo quod ad communem patriam voluit parvenire. Book V, Epist. vii,num. 1, 2.

[36.]Alterum [solatium] quum permitto servis quoque quasi testamenta facere, eaque,ut legitima, custodio, Mandant, rogantque, quod visum, pareo ocius: Suis dividunt,donant; relinquunt dumtaxat intra domum. Book VIII, Epist. xvi, num. 2.

[37.]Ethic. ad Nicomach., Book V, chap. v, p. 61. Vol. I, Ed. Paris.

[1]These marginal subheadings in the Author’s Preface appear neither in Pufendorf’stext nor in Tooke’s original translation, having been borrowed from Barbeyrac by theeditors of this edition.

[16]Tooke’s subheading is quite contrary to the spirit of this section, in whichPufendorf states that eternal salvation is not acquired by natural religion at all.

[44]This section on prescription (usucapio) was originally Pufendorf’s final section(section XV), where it remains in Tooke’s first edition. It was relocated here byBarbeyrac, without explanation.

[17]In Pufendorf’s original text, as in Tooke’s first edition, this was section X. TheEnglish editors have followed Barbeyrac in their reordering of this and the followingtwo sections, locating Pufendorf’s original section VIII (on the piety due to parents)as the present section IX, and Pufendorf’s original section IX (on education) as thepresent section X.

[75]Unauthorized negotiations undertaken by lower officials.



pufendorf, the whole duty of man according to the law of nature [1673]

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